The Ethics of Interrogation. Paul Lauritzen

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The Ethics of Interrogation
Professional Responsibility in
an Age of Terror
Paul Lauritzen
Georgetown University Press

washington, dc
© 2013 Georgetown University Press. All rights reserved. No part
of this book may be reproduced or utilized in any form or by any
means, electronic or mechanical, including photocopying and re-
cording, or by any information storage and retrieval system, without
permission in writing from the publisher.
Library of Congress Cataloging-in-Publication Data
Lauritzen, Paul.
The ethics of interrogation : professional responsibility in an age
of terror / Paul Lauritzen.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-58901-972-0 (pbk. : alk. paper)
1. Torture—Moral and ethical aspects. 2. Terrorism—Prevention.
I. Title.
HV8593.L383 2013
174’.9363254—dc23
2012037546
This book is printed on acid-free paper meeting the requirements

of the American National Standard for Permanence in Paper for
Printed Library Materials.
15 14 13 9 8 7 6 5 4 3 2 First printing

Printed in the United States of America
For John P. Reeder Jr.,
Mentor and Friend
Contents
Acknowledgments ix
Introduction 1
Part I
Chapter One: If You Can’t Oppose Torture, What Can You
Oppose? Psychologists Confront Coercive Interrogations 21
Chapter Two: What’s Wrong with Supporting National
Security? Psychology and the Pursuit of National
Security 44
Chapter Three: Interrogating Justice: The Torture Memos and
the Office of Legal Counsel 67
Chapter Four: Ticking Bombs and Dirty Hands: Coercive
Interrogation and the Rule of Law 91
Part II
Chapter Five: Treating Terrorists: The Conflicting Pull of Role
Responsibility 115
Chapter Six: Discipline and Punish: The Importance of
Professional Accountability 135
Chapter Seven: Professional Responsibility and the Virtuous
Professional 150
Chapter Eight: The Day They Enter Active Service: The
Military Conscience 164
Chapter Nine: Lessons Learned: Dignity and the Rule of
Law 180
viii Contents
Chapter Ten: This We Do Not Do: The Future

of Interrogation and the Ethics of Professional
Responsibility 195
Bibliography 209
Index 215
Acknowledgments
This book was initially conceived as a project for the Brady Program in
Ethics and Civic Life at Northwestern University. I am deeply indebted
to the Brady Program and its director, Laurie Zoloth, for the invita-
tion to spend a year at Northwestern working with the students in the
Brady Program and conducting research for this volume. I found the
Brady students inspiring, and the faculty at Northwestern could not
have been more supportive. Special thanks to Debby and Larry Brady
for their generosity and vision in establishing a program designed to
foster moral leadership for the future. The Brady students were not
merely inspiring in a general way; they pushed me to think much more
carefully about the meaning of professionalism. The book has the
structure it does largely because of the questions posed by students in
the course of one memorable class on professional responsibility.
Although the book was conceived in relation to the Brady Program,
the foundation for the volume was laid in a seminar that Barney Twiss
and I organized, which brought together nine faculty members from
the United States and Canada to discuss issues related to the theme,
atrocities, humanities, and human rights. I am grateful to the partici-
pants in that seminar for the sustained conversation about atrocities
and human rights. The participants were Diana Fritz Cates, Simeon
Ilesanmi, Travis Kroeker, Hugh LaFollette, June O’Connor, William
O’Neill, SJ, John P. Reeder Jr., and Sumner B. Twiss.
I am also grateful to John Carroll University for granting the leave
that freed me to work with the Brady Program. John Carroll also sup-
ported an additional semester’s leave, which allowed me to finish writ-
ing the volume. I am especially indebted to Lauren Bowen, Jeanne
Colleran, and John Day for supporting the research leave that made the
completion of this volume possible.
x Acknowledgments
The list of friends, colleagues, and students who supported this proj-
ect is long, and at the risk of missing some names, let me publicly thank
the following: Jay and Sue Apple, Kathleen Arbuckle, Don Cozzens,
Bryan Evans, Amos Guiora, Gillian Halusker, John Kelsay, Andrew Kop-
pelman, John and Deanne Lentz, Susan Long, Jimmy Menkhaus, Kathy
Merhar, Phil Metres, Brad Olson, David Ozar, Lieutenant Colonel (ret.)
Eric Patterson, Mary Jane Ponyik, Jock Reeder, Tom Schubeck, Jurell
Sison, John Spencer, Frank Summers, and Cristie Traina.
I am also extraordinarily fortunate to have a supportive and loving
family. My sister-in-law, Diane Hayford, and her husband, Don Hay-
ford, have been like a sister and brother to me. My children, Sam and
Julia, are a source of great joy in my life. They are now old enough not
just to tell me I’m wrong, but also to tell me why I am wrong. Hav-
ing to explain and defend the views set out here has made this a much
better book. Given my generally sunny disposition, my spouse, Lisa
deFilippis, could not have been thrilled when I started a book on in-
terrogation and torture. Fortunately, she really is an optimistic person.
Happily for me, she is also my partner of thirty-three years.
Versions of chapters 4 and 9 have been published previously. I am
grateful to the Journal of Religious Ethics and the journal Soundings for
permission to use some of that material here.
Introduction
The ethical inheritance of American democracy consists, first of all,

in a way of thinking and talking about ethical topics that is implicit
in the behavior of ordinary people. Secondly, it also consists in the
activity of intellectuals who attempt to make sense of that way of
thinking and talking from a reflective, critical point of view.
—Jeffrey Stout, Democracy and Tradition, 7
A society entrusts professionals organizationally to pass judgment

on their own, which includes the negative tasks of self-regulation
and self-discipline and the positive tasks of education, research, and
continuing education.
—William F. May, Beleaguered Rulers, 13
Toward the end of his book Democracy and Tradition, Jeffrey Stout ar-
gues that the virtues necessary to sustain traditions of democratic prac-
tice in the United States will be sorely tested in the coming years by the
struggle against terrorism. Fear and resentment are the enemy of criti-
cal self-reflection, and democracy cannot flourish where self-reflection
and the virtues that sustain such scrutiny are absent. Yet terrorism is
designed precisely to induce fear, and fear can paralyze thought. I agree
with Stout on this point, as well as with his contention that we had bet-
ter be prepared to demand from our leaders and our fellow citizens rea-
sons for actions taken in the “war” against terror, if we are to have any
hope of prevailing in this struggle.1 Fear not only paralyzes thought; it
breeds violence and division.
This volume takes seriously Stout’s argument that democracy is a
tradition in which asking for and being prepared to give ethical rea-
sons for our own and each other’s actions is central. You may know
a prophet by his fruits, but you will know a democrat by how he rea-
sons in addition to how he behaves. How, then, are Americans doing
2 Introduction
in critically engaging terrorism with the resources of democracy? In

raising this question, I am not asking how the US military is faring in
Iraq or Afghanistan. Nor am I questioning how, say, the Department of
Homeland Security is doing in preparing to deal with terrorist attacks.
Instead, I am asking about something more amorphous, but no less
important. How are citizens thinking and reasoning about the struggle
against terrorism, and how is this reasoning manifest in their actions?
To make this question more concrete, I will focus on the way the at-
tacks on the United States on September 11, 2001, forced policymakers
and others to weigh the competing interests of national security and
civil liberties. More specifically still, I will focus on how the question of
striking the proper balance was debated when the issue was whether
and how detainees could be interrogated. The question of what kind
of interrogation was defensible was an issue that engaged a number of
professional groups. While there is no easy way to answer the question
of how Americans are reasoning about the war on terror, examining
the role various professionals (and their organizations) have played in
the war on terror provides one bit of evidence. Doctors, lawyers, psy-
chologists, military officers, and other professionals have all been called
on to support the war on terror. How they have responded, both as
individuals and as groups, is fascinating and merits sustained attention.
How they have responded to the question of the limits of appropriate
interrogation provides a focus for such attention.
The subtitle of William May’s book, Beleaguered Rulers, is The Public
Obligation of the Professional. May argues compellingly that one of the
marks of any profession is its moral nature; professionals are public ser-
vants who should serve the public good. Because, as May also correctly
points out, professionals are expected to pass judgment on their own
in relation to norms of professional responsibility, they must reason to-
gether in deciding what professional responsibility demands. The pro-
fessions thus provide a locus for the ethical inheritance of which Stout
speaks, and professionals are among the intellectuals who are respon-
sible for maintaining that inheritance through critical self-reflection.
Such a view of the professions has not been much in vogue of late.
Instead of this “social-trustee” model of professionalism, one that
makes public responsibility an essential feature of professional life, a
view of the professions that understands them largely as centers of
neutral expertise has come to dominate sociological thinking about
Introduction 3
professionals. I do not dispute that many professionals have begun to

see themselves as “hired guns,” whose job it is to do the bidding of
those who pay them. But to acknowledge a reality is not to accept that
it cannot or should not be otherwise. I believe that professionals should
be expected to serve the public good, however difficult it may be to
reach agreement about what serves that good.
One of the more interesting insights that emerges from a careful
examination of several professions and their activities in the war on
terror is that professions may serve to shape character in important
ways. This is significant, because in addition to finding Stout’s vision
of democracy as a tradition that requires the practice of asking for and
giving reasons compelling, I think he is right to stress the importance
within democracies of inculcating particular dispositions, virtues, and
habits of thought that sustain democratic practices. I hope to show that
the professions are one place where democratic character traits may
take root and that we need to nurture a view of professionals as ser-
vants of the common good.2 As we examine codes of professional con-
duct in relation to the role of professionals in the war on terror, we will
see arguments about the values that professionals ought to embrace
in their professional lives as well as about how promotion of the com-
mon good requires certain sorts of commitments. These kinds of argu-
ments are crucial to the moral health of democracy, even if they have
been largely neglected by social scientists in recent years.
Though this work is not a treatise on professionalism or professional
ethics, we nevertheless need some working account of the professions
to bring to the chapters that follow. In sketching an account of the pro-
fessions I have drawn heavily on a number of writers, especially Eliot
Freidson and Steven Brint.3 It may not be the most optimistic note on
which to begin a study of professional responsibility in an age of terror,
but I fear that Eliot Freidson is correct when he points out that profes-
sional responsibility requires attention to the ethical values that sustain
the institutions within which professionals work and that Steven Brint
is also right that most professionals today are unconcerned by the social
ideals with which their professions were historically identified. A com-
panion volume to this one might profitably explore the history that has
led to this state of affairs, if such a state of affairs in fact exists. Yet the
history of professionalism is not my concern here. Instead, we need
to be aware of theoretical models of professionalism or shifts in the
4 Introduction
nature of professions over time only to the degree that they help us to
understand the role of professionals in the war on terror.
There are many fine studies of professions and professionalism.
While I have drawn heavily on the works of Freidson and Brint, the
work of others, including Andrew Abbott and Magali Larson, has been
helpful as well.4 These authors do not agree with one another, but any
full treatment of professionalism must wrestle with their work. Not
only do social scientists disagree with one another about how best to
understand professionals and their role in society, but social scientists
tend to approach the topics very differently from philosophers and ethi-
cists. Among the latter, I have found the work of Michael Davis, Justin
Oakley and Dean Cocking, and William May particularly useful.5
I will draw on the work of these writers fairly promiscuously. That
is, I will not try to reconcile the tensions or contradictions that exist
among the various accounts on which I rely, but will instead simply use
ideas pragmatically as they help advance the goals of this study. We will
certainly encounter points where a fuller discussion of professionalism
would be helpful, and these points may suggest a direction or direc-
tions for future studies. Still, I plan to engage the literature of profes-
sionalism only enough to provide a framework for thinking about the
role of psychologists, lawyers, doctors, and military officers in the war
on terror. For all the disagreement found in the literature of the profes-
sions, no serious theorist would dispute the claim that lawyers, doctors,
and psychologists are professionals by any definition of the term. Some
may dispute that military officers are professionals, but even limited fa-
miliarity with the officer corps in the United States suggests otherwise.
We can begin, then, by providing a working definition of a profes-
sion and a sketch of the history of professions in the United States.
Any conceivable definition is likely to be contested, and one point of
contention is sure to involve whether a profession necessarily incorpo-
rates some commitment to the common good. Ethicists tend to define
professions in this way, whereas social scientists often demur on this
point. Although Michael Davis’s definition of a profession has a classi-
cal provenance, many social scientists would reject its explicitly moral
character. “A profession,” he writes, “is a number of individuals in the
same occupation voluntarily organized to earn a living by openly serv-
ing a certain moral ideal in a morally-permissible way beyond what law,
market, and morality would otherwise require.”6 As an ethicist writing
Introduction 5
about professional responsibility in an age of terror, I find Davis’s ex-

plicit incorporation of moral ideals as a defining feature of a profession
appealing. But there are social scientific accounts of professions that
also include a moral component. Consider Eliot Freidson’s ideal-typical
definition of professionalism. Freidson offers several interdependent
elements as constitutive of this ideal type, including a body of theo-
retically based knowledge, a sheltered position in the labor market, and
a credentialing system that requires higher education. But one neces-
sary feature, he writes, is “an ideology that asserts greater commitment
to doing good work than to economic gain and to the quality rather
than the economic efficiency of work.”7 The claim that professional-
ism requires a commitment to the common good would almost cer-
tainly be the most contested element of Freidson’s definition, in part
because how professions are conceptualized has changed dramatically
in the last forty to fifty years. Steven Brint has captured the shift in para-
digms of professionalism in terms of two models, one that dominated
roughly from the end of the nineteenth century until the early 1960s,
and one that emerged in the 1960s and has become ascendant today.
The first he calls “social-trustee” professionalism; the latter, “expert” or
“expertise” professionalism.
Brint quotes R. H. Tawney’s characterization of professions as an
example of social-trustee professionalism. “[Professions uphold] as the
criterion of success the end for which the profession, whatever it may
be, is carried on, and [subordinate] the inclinations, appetites, and am-
bitions of individuals to the rules of an organization which has as its
object to promote the performance of function.”8 One can hold a so-
cial-trustee model of professionalism without embracing such a high-
minded conception of self-sacrifice in service of a social good, but the
contours of a social-trustee model are clear in the passage. Professions
have a higher purpose than promoting the avaricious desires of individ-
uals or market interests in efficiency and productivity. To be sure, under
this model professions would display the other elements highlighted by
Freidson. They would have special status in the labor force premised on
mastery of a complex knowledge base recognized through a system of
credentialing that is state sanctioned in collaboration with professional
associations. Nevertheless, under the social-trustee model the techni-
cal expertise and control over labor markets are understood to be for
the purpose of promoting the common good. However much reality
6 Introduction
departs from the ideal, the ideal is framed morally. This, alas, is not the
case with expertise professionalism.
As Brint notes, the idea of professions as in some ways the guardians
of the public good did not always sit easily with notions of populist de-
mocracy and business entrepreneurship, even when few questioned a
social-trustee model. Yet it was not until the early 1960s that this model
came under serious assault. Many reasons have been offered for why
this was the case, everything from explosive growth in the number of
professionals—which in turn fueled concern for individual interests—
to the erosion of trust in ruling elites. For our purposes, the causes of
this assault are less important than the consequences. The fundamen-
tal result was that professions came to be defined almost exclusively in
terms of expertise. Brint puts the point this way: “Over the last thirty
years, the idea of professions as a status category has become increas-
ingly disconnected from functions perceived to be central to the public
welfare and more exclusively connected to the idea of ‘expert knowl-
edge.’” Indeed, continues Brint, “powerful social and economic forces
have brought the older idea of professionalism linking social purposes
and knowledge-based authority close to an end.”9
I do not dispute Brint’s analysis that expertise professionalism has
very nearly eclipsed social-trustee professionalism and that the conse-
quence of this is that the professions have lost their souls, to borrow
Eliot Freidson’s characterization. Yet, as I suggested above, we do not
have to accept reality as we find it. Freidson’s sketch of the social con-
sequences of expertise professionalism offers a compelling picture of
why the complete ascendancy of expertise professionalism should be
resisted. In his terms, as the credibility of the voices of professionals
is eroded, the power of wealthy elites and the state is strengthened.
The irony, of course, is that the charges of elitism and abuse of power
have been wielded as a weapon to silence the moral voice of profes-
sionals. And there is no denying that professionals have abused their
power. Freidson’s own work on the medical profession demonstrates
that clearly enough.
Nevertheless, something like the social-trustee model of profes-
sionalism is worth nurturing. I say “nurturing” and not “recovering”
because although it is weakened, the model survives in various pro-
fessions. As we will see in the chapters to follow, in struggling with
the issue of what their role should be in the war on terror, many
Introduction 7
professionals implicitly embraced a social-trustee model. That is, they

sought to reconcile what they were asked to do both with the codes of
ethics articulated by their professional associations and with the moral
ideals of the professions that stood behind those codes. As a whole,
professionals did not just ask whether they were being appropriately
compensated and whether they were violating any laws in helping with
national security work; they asked whether the work they were called
on to do violated values that were essential to their professions.
The distinction between codes of ethics and professional ideals is
worth examining a bit more fully before we turn to the debates within
particular professions about the role of their members in the war on
terror, for we will see this distinction at work repeatedly in the chapters
that follow. For example, the two chapters each on law and psychol-
ogy could be read as divided between these approaches. Freidson has
suggested a helpful way of thinking about this distinction by suggest-
ing that one can focus either on “practice ethics” or on “institutional
ethics.” Although practice ethics are not quite equivalent to codes of
professional ethics, such codes typically address the concrete issues that
practitioners address in their everyday work lives. These concrete issues
that often concern how a practice is financed, managed, and adminis-
tered are the stuff of practice ethics. By contrast, institutional ethics
“are concerned with the moral legitimacy of the policies and institu-
tions that constrain the possibility to practice in a way that benefits oth-
ers and serves the transcendent value of a discipline.”10
Freidson suggests that the move toward expertise professionalism
has especially hurt the commitment to professional ideals and has thus
restricted the ability of professionals to offer a principled moral per-
spective both “in broad policy-making forums and in the communities
where practice takes place.”11 To that claim, I say yes and no. To be
sure, there has been erosion in the confidence placed in professionals to
act morally, either individually or in groups. But, as we will see in the
chapters to follow, many professionals and their associations think of
their work in explicitly ethical terms. And those terms are not under-
stood exclusively in relation to practice guidelines or narrow provisions
found in codes of ethics.
I hope it will also become clear that we are better off as a soci-
ety when professions provide a moral voice for assessing public pol-
icy in a language not restricted by a limited vocabulary of individual
8 Introduction
self-interest or market efficiency. As I will argue in chapter 8, the at-

tempt to understand professional behavior narrowly in terms of self-in-
terest is particularly distorting. That is not to say that either individuals
or the professional societies that represent them always behaved admi-
rably when asked by the US government to be involved in fighting the
war on terror. But both democracy and professional responsibility are
messy affairs, and the fact that the issues we will address are not al-
ways black-and-white should not lead us to conclude that professional
responsibility is impossible in fighting the war on terror.
Debates about what the common good requires have characterized
public discussion about how best to pursue the war on terror. Interest-
ingly, those debates have often been most intense among professionals.
For this reason, the debates that have erupted over the proper role of
professionals in the war on terror tell us both about how professionals
themselves understand their public responsibilities and how particular
cohorts of our fellow citizens are reasoning (and behaving) in their en-
gagement with terrorism.
The book is divided into two parts. In part I, I examine how two
professions, psychology and law, approached the issue of harsh interro-
gation. By “harsh” interrogation I mean the use of techniques beyond
those typically found in criminal-justice interrogations or those tradi-
tionally allowed under the relevant military codes. The enhanced inter-
rogation techniques approved by lawyers at the Office of Legal Counsel
at the Department of Justice (DOJ) and implemented at Guantánamo
Bay, Cuba, are examples. In labeling these as harsh interrogations, I do
not mean to suggest that all harsh interrogations are morally problem-
atic. In this, I follow Amos Guiora, who draws a distinction between
coercive interrogation and other, morally unacceptable, techniques.12
In this volume, harsh interrogation will cover both coercive techniques
that are acceptable and abusive techniques that are not.
To get a sense of how professionals have conducted debates regard-
ing their responsibilities in the war on terror, I begin in chapters 1 and
2 with an examination of the controversy among psychologists about
the role they should play in the interrogation of detainees. Specifically,
I take up the intensive debate within the American Psychological Asso-
ciation (APA) over whether its members violated codes of professional
conduct by participating in national security–related activities. In par-
ticular, there were grave concerns within the APA about psychologists’
Introduction 9
involvement with Behavioral Science Consultation Teams (so-called

biscuit teams [BSCTs]) whose job was to help design interrogation
plans that would exploit the psychological vulnerabilities of detainees
at Guantánamo Bay. These concerns led the president of the APA to
create a task force to examine “psychological ethics and national se-
curity.” The report of the presidential task force, known as the PENS
report, in turn, sparked an ongoing debate within the APA, which con-
tinues today.13
Chapter 1 examines the work of the task force and shows how both
supporters and critics of the involvement of psychologists in national
security–related interrogations sought to ground their views in the
APA’s own Code of Ethics. The report of the task force was very con-
troversial and the critics of the report sought to have its recommenda-
tions either withdrawn or significantly revised. Because many of these
efforts attempted to show that the task force either misinterpreted or
misapplied the APA Code of Ethics, examining the criticism of the re-
port helps us to see how professionals reason together morally. Chapter
1 focuses on the APA code, but it will become clear that the debates
surrounding the report and about the role of the APA code do not
merely regard what I characterized above as practice ethics. Practice
ethics are at stake, but we will see that debates about the PENS report
are also arguments regarding institutional ethics; namely, the ideals for
which the profession of psychology should stand. Although I seek to be
fair to both sides in the debate, in the end, I conclude that the participa-
tion of psychologists at Guantánamo Bay threatened core values of the
profession of psychology.
Chapter 2 expands the examination of the institutional ethics of psy-
chology to take up the larger question of whether psychologists should
be involved in national security–related work at all. Many critics of the
involvement of psychologists with BSCTs at Guantánamo Bay have
made far more sweeping judgments than that this activity was a viola-
tion of professional responsibility. In effect, these critics argued that the
values central to the field of psychology are wholly incompatible with
the dirty work required by counterintelligence and counterterrorism. I
examine the arguments on both sides of this debate. Here, however, I
find that the supporters of psychologists’ involvement with national se-
curity operations have the better arguments. Even if the opponents of
the PENS report are right in concluding that psychologists should not
10 Introduction
be involved with abusive interrogations, it does not follow that psychol-

ogists violate the core values of their profession when they use their
expertise to support the sometimes distasteful work of counterterror-
ism. A strong case can be made for the involvement of psychologists in
work involving information gathering, intelligence analysis, resource
deployment, and information integration, and much of this work is vi-
tal to protecting national security.
Although I draw normative conclusions in both of the first two
chapters, I am more concerned in these chapters with tracking the ar-
guments of professionals in the field of psychology than with defend-
ing my own positions on whether psychologists should be involved in
national security–related work and, if so, whether that involvement in-
cludes participation in harsh interrogations. As word of psychologists’
role at Guantánamo Bay and elsewhere came to light, citizens debated
whether such a role was appropriate. These debates took place in bars,
on talk shows, around dinner tables, and many other places besides.
But they also took place among psychologists and within the associa-
tions that represent and regulate the profession of psychology. The fact
that much of the debate among psychologists took place publicly is a
good thing. The public nature of the debate allows us a window on
how some of our fellow citizens are reasoning about the war on terror.
It also allows us to acknowledge professions as an important site of
moral discourse.
I pursue a further excavation of such a site in chapter 3, where I turn
to examine the role of attorneys in harsh interrogations. The debate
among psychologists might not have occurred at all had lawyers not
determined that enhanced interrogation techniques (EITs) were legal.
Thus, in chapter 3, I explore the role of attorneys in authorizing EITs.
The outline of this story is probably familiar to most readers. Attorneys
at the DOJ were asked by the White House and by the CIA to deter-
mine whether particular interrogation techniques violated US law. The
memoranda prepared by the Office of Legal Counsel, the office within
the DOJ responsible for such determinations, were eventually leaked to
the press and dubbed the “torture memos.”14
Chapter 3 examines these interrogation memoranda and the de-
bates that erupted within the legal community when they were made
public. Like the PENS report, the interrogation memoranda were
Introduction 11
enormously controversial. Many legal scholars condemned the legal

reasoning found in these memoranda as shoddy, disingenuous, and
unprofessional. For example, shortly after the memoranda were made
public, over one hundred prominent attorneys sent a letter to President
George W. Bush condemning the authors, John Yoo and Jay Bybee,
for failing to meet their professional obligations.15 And within several
months of the public release of the memoranda, the Office of Profes-
sional Responsibility (OPR) in the DOJ opened an investigation into
the work of Yoo and Bybee to determine whether they were guilty of
professional misconduct.16
Examining the analysis of the OPR in reviewing the work of Yoo
and Bybee, like examining the APA’s review of the work of military
psychologists, provides insight into how a profession approaches a con-
flict that pits competing professional values against one another. At-
tending to the response within the DOJ to the work of Yoo and Bybee
thus gives us an additional look at mechanisms of professional account-
ability, in this case, at the level of an institutional review that incorpo-
rates both general norms of professional conduct and values specific to
a particular institution.
The review of institutional-level assessment is supplemented in
chapter 3 by an examination of a decidedly noninstitutional review,
though one admittedly carried out within an institutional context.
Perhaps the most striking individual response to the interrogation
memoranda came from Alberto Mora, the general counsel of the navy
during the time that the memoranda were being operationalized, and
I examine Mora’s reasoning in seeking to block the use of EITs after
they had been authorized by the legal analysis of Yoo and Bybee.17
Mora was doubtful that the conclusions of Yoo and Bybee that EITs
are lawful could withstand careful scrutiny. Yet, even if a narrow justi-
fication can be found for EITs, an attorney who is acting responsibly in
offering advice on the legality of EITs must, Mora argued, consider the
broader implications of authorizing such techniques. He or she must
ask whether the mistreatment of detainees that such EITs would allow
is not “contrary to American values.”
As we will see, the basic problem according to Mora is that even
if one wanted to authorize harsh interrogations, to do so would pro-
foundly alter the relationship between the law and the character of the
12 Introduction
military, because the law is a school for character. Military training in-
culcates virtues and respect for the rule of law, and the rule of law in
turn shapes military values. To authorize the military to conduct abu-
sive interrogations is to undermine military training. Mora thus helps
us to see that the range of considerations to which we ought to attend
in asking about the legality of harsh interrogations is much broader
than we might originally imagine. Professional responsibility involves
more than staying within a prescribed set of guidelines in the conduct
of one’s labors. In the case of the profession of law, professional re-
sponsibility means asking whether a legal professional can defend an in-
terpretation of the law that appears profoundly at odds with the values
the law is meant to serve.
In chapter 4, I turn to consider the broader debate to which Mora’s
reasoning directs us. Specifically, I examine some of the arguments in
the legal literature about whether abusive interrogations are funda-
mentally incompatible with the rule of law. One of the best examples
of a sustained argument on this issue is found in the work of Alan Der-
showitz. Chapter 4 takes up Dershowitz’s argument that the United
States should develop a system for granting “torture warrants” in cases
where known terrorists have information that—if available to the ap-
propriate authorities—could save many innocent lives.18 Dershowitz’s
proposal is fascinating, in part because he vigorously defends his pro-
posal by appealing to core democratic values. According to Dershow-
itz, because leaders of democratic regimes have a strict obligation to
safeguard their citizens’ lives as well as to promote human rights, in
a situation where these two commitments cannot be met simultane-
ously, they will confront a tragic choice. Dershowitz insists that this is
precisely the situation confronting political leaders who face a “tick-
ing bomb” scenario. In the face of a terrorist threat where they can-
not both protect innocent life and uphold human rights commitments,
Dershowitz argues that political leaders must safeguard innocent life.
But they must do so transparently, in order to insure the accountability
that is central to the sort of oversight that citizens of democratic socie-
ties must exercise. If human rights cannot always be fully upheld, that
is simply the price of responding to extremism.
Dershowitz’s defense of the idea of torture warrants has generated
a substantial literature, some of which is taken up in chapter 4. What is
Introduction 13
perhaps most interesting about the best of the responses to Dershowitz

is that they tend to draw a connection between the rule of law and the
formation of character and the commitment to values Mora sought
to highlight. Jeremy Waldron, for example, argues that there is “an
enduring connection between the spirit of law and respect for human
dignity” that is severed when torture is legalized. While force and co-
ercion are intrinsic to the nature of law, a prohibition against torture
symbolizes the recognition that law should not compel compliance
by reducing human beings to “a quivering mass of ‘bestial, desperate
terror.’”19
Indeed, if Dershowitz’s critics are united by a common conviction it
is that the proper functioning of the rule of law is undermined when
the core values embedded in the law, values like avoiding brutality,
condemning tyranny, and rejecting arbitrary detention, are threatened
by a practice that, by its nature, works brutally and tyrannically and is
unlikely to be contained within neat legal categories. To explore the
debate between Dershowitz and his critics is thus to attend to another
contested site in the debate about professional responsibility in an age
of terror.
If part I is largely descriptive in its examination of what precisely a
select group of professionals did in relation to harsh interrogation and
how other professionals evaluated their actions, part II takes a norma-
tive turn. Chapter 5, for example, examines another group of profes-
sionals—namely, physicians—but this examination is meant to facilitate
an exploration of the relationship between professional roles and moral
responsibility. Following Arthur Applbaum, I argue that we should
adopt a view of professional responsibility that can be characterized
as practice positivism.20 I suggest that while there is no “essential” or
metaphysical nature of doctoring, by adopting a code of ethics physi-
cians can moralize their profession by aligning medical practice with
moral commitments. Professional practice expectations and moral
commitments do not have to align, which is one reason it is important
continually to monitor professional practice. If practices are what they
are and not necessarily what they ought to be, then professionals who
value the moral commitments embedded in practice codes have good
reason to enforce the codes as a means of maintaining professional
identity and integrity.
14 Introduction
Chapter 6 develops this point further by examining the system of li-

censing that regulates professional life in the United States. We discover
there that, just as there are two primary views of professionalism, there
are two main views of licensing, the public interest model and what
is sometimes referred to as the “capture” model. Consistent with my
emphasis on a social-trustee model of professionalism, I argue that a
public interest model of licensing is the best for serving democratic ide-
als of transparency and accountability. Chapter 6 thus highlights efforts
to hold professionals accountable for their actions in the war on terror.
We examine, for example, the work that has been done to bring psy-
chologists who participated in abusive interrogation before state disci-
plinary boards in the hope that they would be stripped of their licenses.
We also attend to efforts to pass state law that would make it easier to
discipline professionals who participated in abusive interrogations.
In some ways, chapters 1 through 6 focus primarily on what I earlier
referred to as practice ethics, as opposed to institutional ethics, for in
those chapters the focus is upon the codes that function to regulate
professional practice in the fields of psychology, law, and medicine. In
chapter 7, I turn to the goals and value commitments that constitute
the realm of institutional ethics. In turning to examine the values that
stand behind the codes of professional ethics, we explore the way pro-
fessions and the codes they adopt shape habits of mind and heart in
ways that explain why it is appropriate to speak of the virtuous profes-
sional. Chapter 7 thus explores the relationship between virtue theory
and the professions. Drawing on the account of the virtues and profes-
sional roles developed by Justin Oakley and Dean Cocking, I argue that
certain goods are centrally important to human flourishing, among
them physical and mental health, justice, and the rule of law. Because
society has a vested interest in securing these goods, it is appropriate
for the state to recognize the professions whose regulative ideals serve
these goods. Psychology, law, and medicine are three such professions,
and the public’s trust in these professions is, for that very reason, ex-
tremely important.
The notion of a regulative ideal of a profession is particularly help-
ful because it draws upon a conception of correctness or excellence
that is internalized by professionals in such a way that they conform
their motivations and conduct to that standard. Codes of ethics help
delineate the standard of excellence and they reflect an effort to specify
Introduction 15
in practical terms what excellence might require, but they do not ex-
haust or trump the standard. Ideally, they help shape the character of
the professional who seeks to embody a standard of excellence, but,
in the end, the code is judged by whether it promotes the ends that a
profession is expected to serve.
Professions once spent considerable effort to inculcate virtues that
served the regulative ideals that practitioners sought to realize through
professional activity. The effort to form character is much less common
today in most professions. One profession where it is still central is the
military. It is thus particularly interesting that the professional group
that most vigorously and consistently opposed abusive interrogation
was that of the military. Chapter 8 examines this opposition with an
eye to why military professionals were so opposed to the use of EITs at
Guantánamo Bay and elsewhere.
One explanation of this military resistance, offered by John Yoo,
among others, is that the military found itself in a power struggle with
civilian leaders and opposed EITs in an effort to consolidate rather
than cede power to civilians. On this account, opposition to EITs is
essentially a form of enlightened self-interest and is not grounded in
traditional military values. I argue that while the narrative of a power
struggle has some merit, it fundamentally misses the centrality of the
law of war in the formation of military officers. In particular, I draw
on Samuel Huntington’s classic account of military professionalism in
The Soldier and the State to suggest an alternative account of military
opposition to EITs. I believe that Huntington’s focus on the military
professional’s code of ethics rooted in custom, tradition, and the spirit
of military service captures the motivation for military opposition to
EITs far better than the theory of rational self-interest offered by Yoo
and others.
In chapter 9, I return to the question of how the United States is
doing in responding to terrorism. Drawing on the discussion of the
use of interrogation techniques in the war on terror, I suggest that
the answer can only be mixed. I draw this conclusion because many
of the techniques used at Guantánamo Bay and elsewhere are, in my
view, morally impermissible. To draw this conclusion requires stating
which techniques are impermissible and why. I take up the issue of im-
permissibility in chapter 9 and argue that an autonomy-based account
of dignity offers a standard by which to judge various interrogation
16 Introduction
techniques morally. If my claim that many of the techniques that were

used at Guantánamo Bay are impermissible is correct, then there is rea-
son to conclude that the professions (and professionals) that facilitated
morally impermissible interrogation failed in their professional respon-
sibility to the common good.
Finally, in chapter 10, I consider where arguments regarding coun-
terterrorism stand more than a decade after the attacks of Septem-
ber 11, 2001. Although President Obama reversed course on the use
of EITs, there is reason to believe that other questionable counterter-
rorism techniques have taken their place. Moreover, there are calls for
reconsidering the use of EITs. For example, the former head of the Na-
tional Clandestine Service, Jose Rodriguez, has argued that EITs were
crucial in preventing terrorist attacks and should be available for use
by the CIA when suspected terrorists are captured. Indeed, Rodriguez
argues that repudiating EITs has led to the use of considerably more
(morally) questionable counterterrorism practices, such as targeted
killing. If you forswear effective interrogation techniques, he argues,
killing becomes a more attractive option than capture.
Chapter 10 examines these defenses of EITs and suggests that they
are best evaluated in relation to traditions of moral practices associ-
ated with the professions. While all of the professions examined in this
volume can be useful in the ongoing evaluation of counterterrorism
policies and practices, the military profession provides a model of how
moral traditions can be brought to bear in assessing counterterrorism.
Although I argue that at least some of the EITs should not be used in
the fight against terrorism, I do not think the issues involved are mor-
ally unambiguous. I acknowledge, for example, that most supporters of
EITs sought to justify their use in terms of appeals to the higher good of
national security. This may not provide much consolation to those who
believe the rule of law was abandoned after the attacks of September
11, but it should give us grounds for hope. Indeed, I suggest through-
out the volume that the response of professional organizations to abus-
ive interrogations is not just a cautionary tale, but also a hopeful one.
Introduction 17
Notes
1. I have serious reservations about describing counterterrorist activity as a
“war.” Ann Mongoven has provided a compelling argument about the danger of
war metaphors both in medicine and in characterizing antiterrorist efforts. She
writes: “Both the war against disease and the war on terror have proven ethically
problematic in legitimating high rates of collateral damage, promoting overmo-
bilization, fostering distorted resource allocation, and undermining democratic
process.” (See Mongoven, “War on Disease and the War on Terror,” 410.) Nev-
ertheless, antiterrorist efforts have been waged as a war, both metaphorically and
literally. Thus, I will not hereafter use scare quotes in referring to the war on terror.
For a different but equally trenchant critique of war language, see Guiora, Consti-
tutional Limits.
2. For a related but very different view of the role of the professions in democ-
racy, see Dzur, Democratic Professionalism. Dzur is highly critical of the social-trustee
model of professionalism, but nevertheless wishes to adapt aspects of this model to
promote participatory democratic practice.
3. Freidson, Professionalism; Brint, In an Age of Experts.
4. Abbott, System of Professions; Larson, Rise of Professionalism.
5. Davis, Profession, Code, and Ethics; Oakley and Cocking, Virtue Ethics and Pro-
fessional Roles; May, Beleaguered Rulers.
6. Davis, Profession, Code, and Ethics, 3.
7. Freidson, Professionalism, 127.
8. Brint, In an Age of Experts, 7.
9. Ibid., 8, 17.
11. Ibid., 217.
12. Guiora, Constitutional Limits, 2.
13. APA (American Psychological Association) Presidential Task Force, Psycho-
logical Ethics and National Security.
14. The New York Times has collected a number of the relevant documents
and made them available at the following webpage: “A Guide to the Memos on
Torture,” New York Times, accessed August 15, 2011, www.nytimes.com/ref/inter
national/24MEMO-GUIDE.html.
15. “Lawyers’ Statement on Bush Administration’s Torture Memos,” Office of
the City Attorney, City and County of San Francisco, accessed September 4, 2011,
www.sfcityattorney.org/Modules/ShowDocument.aspx?documentid=507.
16. “Investigation into the Office of Legal Counsel’s Memoranda Concerning
Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interroga-
tion Techniques’ on Suspected Terrorists,” Office of Professional Responsibility,
July 29, 2009, http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729
.pdf.
18 Introduction
17. Alberto Mora to inspector general, memorandum, Department of the Navy,

July 7, 2004, available at the Center for Constitutional Rights website, www.ccrjus
tice.org/files/Mora%20memo.pdf.
18. Dershowitz develops his argument in a series of essays: “Should the Ticking
Bomb Terrorist Be Tortured?”; “Reply: Torture without Visibility and Accountabil-
ity Is Worse Than with It”; “Torture Warrant”; and “Tortured Reasoning.”
19. Waldron, “Torture and Positive Law,” 1727; he is quoting Arendt, Origins of
Totalitarianism, 441.
20. Applbaum, Ethics for Adversaries.
Part I
One
If You Can’t Oppose Torture,

What Can You Oppose?
Psychologists Confront
Coercive Interrogations
Professional societies may indeed have narrow agendas in publish-

ing their ethics. . . . Nonetheless, the public statement of a profes-
sion’s ethics serves a far wider purpose than mere regulation of its
membership. Such public statements establish a voice in the com-
munity, provide unification of purpose, recruit community support,
and concentrate political power.
—Philip J. Candilis, “Reply to Schafer: Ethics and
State Extremism in Defense of Liberty,” 453
If a professional society is unable to take a stand against torture, it is

pretty much unable to take a stance against any immoral behavior.
—Robert Jay Lifton, in Peltz, “Learning from History,” 715
If there is an iconic image of the prison abuse scandal at Abu Ghraib, it

is that of Satar Jabar standing on a wooden box, his arms extended out
to his sides. He is clothed in what appears to be a tattered blanket with
a hole cut in the middle so that it can be draped over him like a poncho.
Electrodes are attached to fingers on both hands, which are turned out-
ward toward the camera, almost in supplication. An electrode snakes
under the blanket, apparently attached to his genitals. He is barefoot
and his head is covered with a dark hood.
There are of course other images from Abu Ghraib that are haunt-
ing. The pictures of Pfc. Lynndie England dragging an Iraqi man by a
leash, of dogs snarling at terrified prisoners, of a perverse pyramid of
22 Chapter One
naked prisoners are chilling. But for a nation that has often identified
itself in terms of Christian tradition, it was hard not to see the image of
Satar Jabar, the man whose ordeal standing on the box was captured in
a photographic still, as a Christ-like figure. It was not a crucifixion, but
it resembled one and the searing image could not be ignored.
Indeed, the public revelation of the pictures from Abu Ghraib and
the abuses of Iraqi prisoners by American soldiers they depicted were
not ignored. The pictures led to investigations of the policies and pro-
cedures that facilitated those abuses. From 2004, when the story first
broke, through 2012 there have been countless government investiga-
tions with reports that run to tens of thousands of pages. Add to this
material the reports issued by groups like Human Rights Watch and
Physicians for Human Rights, and the government documents that the
American Civil Liberties Union obtained through requests filed un-
der the Freedom of Information Act, and there is a small mountain
of evidence documenting abuse. One of the common themes in these
reports, documents, and investigations concerns the role played by
professionals in justifying, participating in, and facilitating the abuse of
detainees in the war on terror. Not only did human rights groups raise
questions about abuses at Abu Ghraib, they also inquired about alleged
abuses at Guantánamo Bay, detention camps in Afghanistan, CIA black
sites, and elsewhere.1 Physicians, psychologists, psychiatrists, nurses,
and other health care workers were all implicated in alleged abuses.
Lawyers were accused of providing the legal framework that enabled
the abuses to occur. Concern about the role of professionals in these
abuses in turn led professional associations of physicians, psychiatrists,
psychologists, nurses, and others to reflect on the role of their guilds.
The American Medical Association, the American Nurses Association,
the American Psychiatric Association, and the American Psychological
Association (APA) all took stands on whether their members should be
involved with coercive interrogations. In addition, some of the most
prominent academic lawyers in the country debated the role of attor-
neys in promoting administration policies that arguably transgressed
human rights, and the DOJ launched an inquiry into the role of lawyers
within the Office of Legal Counsel in facilitating abusive interrogation.
This chapter and the next focus on the role of the APA and indi-
vidual psychologists in the war on terror. In examining the role of pro-
fessionals in the war on terror, it is fitting to begin with psychologists,
If You Can’t Oppose Torture,What Can You Oppose? 23
both because the role of several individual psychologists has been

clearly documented and because the APA, one of the largest profes-
sional societies in the country, was very active in defending the involve-
ment of psychologists in detention centers. Indeed, the role of the APA
has been enormously contentious among psychologists, and looking
at the debates about the role of psychologists and the APA in the war
on terror is a good place to begin a careful examination of the public
responsibilities of professionals in an age of terror.
To get a sense of the sort of activity that divided the profession of
psychology, we can look briefly at the controversy surrounding the
work of one military psychologist, Col. Larry James, who was the chief
psychologist at Guantánamo Bay, Cuba, in 2003. According to a com-
plaint filed against James in 2010 with the Ohio Board of Psychology,
he was responsible for formulating policy on interrogation as well as
overseeing interrogation strategies for individual detainees.2 Although
James disputes the claim that he recommended or implemented abu-
sive techniques, the fact that EITs were used is well documented. For
example, the report of the Senate Armed Services Committee on the
treatment of detainees at Guantánamo Bay quotes from a memo of the
commanding officer at Guantánamo, Major General Geoffrey Miller,
expressing concern that he was no longer permitted to use EITs that
in his view were “essential to mission success.” These included the use
of isolation facilities, deprivation of light and auditory stimuli, twenty-
hour-long interrogation sessions, and other techniques designed to
break down the detainees psychologically.3
It is also clear that the techniques, apparently designed by psycholo-
gists to break down detainees, worked. Reports of detainees released
from Guantánamo Bay, as well as records from the prison, suggest that
detainees were acutely traumatized. For example, the British detainee
Shafiq Rasul described being pressed by interrogators to admit that he
was pictured in a video he was repeatedly shown:
I said it wasn’t me but she kept pressing that I should admit it. She was very
adamant. She said to me “I’ve put detainees here in isolation for 12 months
and eventually they’ve broken. You might as well admit it now so that you
don’t have to stay in isolation”. Every time I tried to answer a question she
insisted I was lying. She kept going on and on at me, pressuring me, telling
me that I was lying, telling me that I should admit it. Eventually I just gave
24 Chapter One
in and said “okay, it’s me”. The reason I did this was because of the previous
five or six weeks of being held in isolation and being taken to interrogation
for hours on end, short shackled and being treated in that way. I was going
out of my mind and didn’t know what was going on. I was desperate for it
to end and therefore eventually I just gave in and admitted to being in the
video.4
Should psychologists help efforts to break down detainees? Should

they help identify phobias that can be used against detainees? Should
they use their knowledge about the effects of sleep deprivation or vi-
sual and auditory stimulation to construct interrogation plans? These
are some of the questions that the profession of psychology confronted
when the techniques used at Guantánamo Bay and elsewhere came to
light. And, as the complaint against James indicates, many psycholo-
gists argued that participating in abusive interrogation techniques was
a violation of the APA code of professional ethics. In the case of James,
the complaint alleges violations of at least eighteen sections or subsec-
tions of the Ohio Revised Code (ORC), and most of those provisions
can be directly mapped to sections of the APA Code of Ethics. And in
case there is any doubt that the APA code is relevant, the ORC is clear.
Section 4732.17(A)(4) states, “Ethics codes and standards for providers
promulgated by the ‘American Psychological Association,’ the ‘Cana-
dian Psychological Association,’ and other relevant professional groups
shall be used as aids in resolving ambiguities that may arise in the inter-
pretation of the rules of professional conduct, except that those rules
of professional conduct shall prevail whenever any conflict exists be-
tween these rules and any professional association standard.”5 The APA
clearly needed to get involved.
The PENS Report

Although there were rumors of psychologists being involved with abu-
sive interrogation techniques prior to 2004, serious debate among psy-
chologists did not emerge in earnest until 2005, when the president and
board of directors of the APA established the Psychological Ethics and
National Security (PENS) task force to explore the proper role of psy-
chologists involved with interrogating prisoners at Guantánamo Bay
and elsewhere. The charge to the committee was to “examine whether

our current Ethics Code adequately addresses [the ethical dimensions
of psychologists’ involvement in national security-related activities],
whether the APA provides adequate ethical guidance to psychologists
involved in these endeavors, and whether APA should develop policy
to address the role of psychologists and psychology in investigations
related to national security.”6
The task force report was issued in June 2005, and a superficial read-
ing of the PENS report would not lead one to expect significant con-
troversy. The task force endorsed both a 1985 joint resolution with the
American Psychiatric Association and a 1986 APA resolution against
torture. In addition, the report is clear that psychologists are bound
by the APA ethics code, even when acting outside traditional health
care relationships. Indeed, the first of twelve statements of ethical ob-
ligations for psychologists set out in the report is seemingly unequivo-
cal: “Psychologists do not engage in, direct, support, facilitate, or offer
training in torture or other cruel, inhuman, or degrading treatment.”7
Why, then, was the report so controversial?
To answer that question we must take a closer look at the report and
the twelve statements of obligations it sets out. We must also note that
the report not only sets out prohibited activities, but also acceptable
ones. At several points, we will need to examine the text of the report
in some detail, but we can begin with a thumbnail sketch of the twelve
statements of obligations. The statements can be divided in a number
of ways, but the following schema is, I think, helpful. According to the
task force, psychologists working on national security–related matters
either must or must not do the following.
Psychologists must
• report acts of torture that they witness

• clarify their professional identity and function where it may be
ambiguous
• be mindful of special or unique ethical considerations that may
attend their work as consultants to interrogations
• always remember that those being interrogated may not have
done anything wrong or may not know the information the in-
terrogator seeks
26 Chapter One
• make clear the limits of confidentiality

• recognize that they have obligations to those who are not their
clients
• consult others when wrestling with ethical questions or dilemmas
Psychologists must not
• engage in torture or support, facilitate, or train those who do

• use health care information from medical records to the detri-
ment of an individual’s safety or well-being
• violate the laws of the United States
• engage in multiple relationships with detainees—for example, as
both health care provider and consultant to an interrogation
• act beyond the scope of their competencies
Dividing the statements of ethical obligations in this way begins to

give us a sense of why the PENS report was controversial. If we fo-
cus on the list of activities that psychologists must not do, we might
well draw the conclusion that psychologists will have almost nothing
to do with any sort of coercive interrogation. They must not torture
or engage in cruel, inhuman, or degrading treatment; they must not
act beyond their competencies, which presumably do not include inter-
rogation for most psychologists; and they must not confuse their rela-
tionships with detainees. Psychologists cannot be both consultants to
interrogators and clinicians concerned about the mental health needs
of detainees.
By contrast, when we attend to the list of activities that psycholo-
gists must engage in, it is clear that the task force expects and applauds
the involvement of psychologists with interrogations. As the overview
of the report puts it, the task force believes “that it is consistent with
the APA Ethics Code for psychologists to serve in consultative roles
to interrogation and information-gathering processes for national se-
curity-related purposes.”8 In this division between what psychologists
must not do, which suggests that involvement in interrogation will be
minimal, and what psychologists must do, which presupposes extensive
engagement that must be constrained morally, lies the explanation for
much of the acrimonious debate that has gripped the profession of psy-
chology in recent years.
Responses to the PENS Report
If language like “acrimony” seems strong, the reality is that it may

not be strong enough, for critics of the PENS report have been blister-
ing in their responses. Mary Pipher, a psychologist who received two
APA Presidential Citations, condemned APA action as complicity in
war crimes based on a “heinous policy”; one task force member called
the report “platitudinous” and argued that it is just a form of “damage
control”; Stephen Soldz, past president of Psychologists for Social Re-
sponsibility, accused the APA leadership of “manipulations, distortions
and downright lies” in relation to the report.9 The report and the APA
leadership’s handling of efforts to strengthen the report’s restrictions
led to organized protests against the APA, including a movement for
members to withhold dues.10
What precisely are the objections of critics? One of the best articula-
tions can be found in an essay by Brad Olson, Stephen Soldz, and Mar-
tha Davis, published in Philosophy, Ethics, and Humanities in Medicine in
2008.11 On their account, criticisms can be divided roughly into two
types: process or policy issues. In terms of process, the main complaint
is that the APA leadership filled the committee with psychologists with
extensive ties to the Department of Defense, which in turn led to a
lack of transparency in task-force deliberations and a failure to address
concretely what psychologists should or should not do when involved
with detainee interrogations. Indeed, six of the nine voting members
of the committee had either been involved with or consulted on de-
tainee interrogations. Although the APA leadership argued that hav-
ing psychologists with real-life experience with the issues was crucial
to an informed and realistic assessment of the role of psychologists in
coercive interrogations, critics complained that there was a conflict of
interest that biased task-force deliberations.
To be sure, process issues are important—and I will say more about
them below—but I want to focus on the substantive policy issues that
Olson, Soldz, and Davis raise, for these take us to the core questions
of professional responsibility found in the debate among psychologists
over the PENS report. One reason this particular critique is so impor-
tant is that the authors carefully tie their criticisms to the APA Code of
Ethics and attempt to show that the task force misapplied or misinter-
preted the code. For this reason, the critique illustrates in compelling
28 Chapter One
ways how professionals may demand of their colleagues justifications

for their actions in terms of agreed-upon standards of the profession.
The 2002 APA Code of Ethics is the controlling normative docu-
ment in relation to which both the presidential task force and Olson,
Soldz, and Davis make their case.12 One contested section of the 2002
code is “Principle B: Fidelity and Responsibility.” It reads:
Psychologists establish relationships of trust with those with whom they

work. They are aware of their professional and scientific responsibilities to
society and to the specific communities in which they work. Psychologists
uphold professional standards of conduct, clarify their professional roles
and obligations, accept appropriate responsibility for their behavior, and
seek to manage conflicts of interest that could lead to exploitation or harm.
Psychologists consult with, refer to, or cooperate with other professionals
and institutions to the extent needed to serve the best interests of those
with whom they work. They are concerned about the ethical compliance
of their colleagues’ scientific and professional conduct. Psychologists strive
to contribute a portion of their professional time for little or no compensa-
tion or personal advantage.13
According to Olson, Soldz, and Davis, the task force used this principle
to ground its commitment to having psychologists participate in na-
tional security–related interrogations by emphasizing the statement
that psychologists must be “aware of their professional and scientific
responsibilities to society” and by understanding the primary respon-
sibility in this context to be “gathering information that can be used
in our nation’s and other nations’ defense.”14 The problem here is two-
fold: First, there are other responsibilities that psychologists have to
society that are arguably more important, including not eroding soci-
ety’s trust in the discipline by allowing its use for narrow political ends.
Second, principle B includes much more than this one clause, and the
other parts of principle B appear to pull in the opposite direction from
where the task force wants to go. For example, Olson, Soldz, and Davis
argue that the provision that psychologists should “uphold professional
standards of conduct, clarify their professional roles and obligations,
accept appropriate responsibility for their behavior, and seek to man-
age conflicts of interest that could lead to exploitation or harm” di-
rectly relates to issues psychologists face when participating in coercive
interrogations and would have been difficult to meet given the condi-
tions at Guantánamo Bay.
Moreover, by making a societal responsibility to support national
security the cornerstone of the PENS report, the task force reverses
the priority given to individual welfare evident throughout the Code
of Ethics. In addition, by focusing on a social responsibility to national
security, the task force is led to a utilitarian argument that ranks the
possibility of harm in the future higher than the actual and immediate
harm that will be done to vulnerable detainees if coercive interroga-
tions exploit psychological weaknesses identified by psychologists. The
APA Code of Ethics just does not support this set of priorities, say Ol-
son, Soldz, and Davis.
There are also issues with how the task force understands the sec-
tion titled “Principle A: Beneficence and Nonmaleficence.” In the 2002
code, this principle reads:
Psychologists strive to benefit those with whom they work and take care to
do no harm. In their professional actions, psychologists seek to safeguard
the welfare and rights of those with whom they interact professionally
and other affected persons, and the welfare of animal subjects of research.
When conflicts occur among psychologists’ obligations or concerns, they
attempt to resolve these conflicts in a responsible fashion that avoids or
minimizes harm. Because psychologists’ scientific and professional judg-
ments and actions may affect the lives of others, they are alert to and guard
against personal, financial, social, organizational, or political factors that
might lead to misuse of their influence. Psychologists strive to be aware of
the possible effect of their own physical and mental health on their ability
to help those with whom they work.15
According to Olson, Soldz, and Davis, the task force focuses more
attention on nonmaleficence than on beneficence, and when it does
engage the principle of beneficence its discussion is skewed by focus-
ing narrowly on the benefit of psychologists’ work to the military or
to the abstraction “national security” and not on the benefit (or harm)
to the detainees with whom they will be interacting. But this focus is
at odds with how the code has historically been applied. Traditionally,
the code has been understood to promote the welfare of “the individ-
ual or group receiving the psychological service, research attention, or
30 Chapter One
consultation.” Thus to apply the code with the understanding that it

should first and foremost protect the military or “national security” is
“to make a radical shift in the focus of the ethics code, too radical to be
considered a traditional or widely accepted interpretation.”16
There is also a problem created by changes made to the APA Code
of Ethics when the 1992 code was revised in 2002. Table 1.1 presents a
side-by-side comparison of the controversial section. Arguably, the fact
that the APA revised section 1.02 of the code is the heart of the substan-
tive criticism that opponents of the PENS report have lodged against
APA actions in response to claims of professional misconduct by psy-
chologists working in national security–related settings. The argument
is that by changing the code to allow psychologists to defer to “require-
ments of the law, regulations, or other governing legal authority,” the
Ethics Committee opened the door to abuse. It did so, according to
this line of argument, because psychologists were no longer required to
abide by the APA Code of Ethics; instead, they could violate the code
and defend their actions by saying that they were “following orders.” As
Olson, Soldz, and Davis point out, elsewhere the code indicates that, in
a situation of conflict between the law and the code, psychologists may
follow the law, but only when doing so does not violate human rights.
Specifically, the 2002 code indicates that if psychologists’ moral respon-
sibilities conflict with laws or regulations, they should seek to resolve
the conflict. If they cannot resolve the conflict, “psychologists may ad-
here to the requirements of the law, regulations, or other governing
authority in keeping with basic principles of human rights.”17
The problem is that this last qualifying clause, “in keeping with basic
principles of human rights,” is not found in section 1.02, and section
1.02 is enforceable, whereas the section in which the human rights re-
striction is found, “Introduction and Applicability,” is aspirational only.
The upshot, say Olson, Soldz, and Davis, is that “the 2002 Code’s en-
forceable [section] 1.02 condones placing military commands and pri-
orities over the ethical responsibilities of the psychologist.”18
Many critics of the PENS report believe that the substantive prob-
lems with the report are connected to the process issues. For example,
the fact that the task force appeared to privilege the commitment to
national security over the commitment to benefiting and refraining
from harming vulnerable individuals may be related to the fact that the
Table 1.1 Comparison of APA Code of Ethics 1992 vs. 2002

APA Ethical Standards 1992 APA Ethical Standards 2002
1.02 Relationship of Ethics and Law. 1.02 Conflicts Between Relationship of
If psychologists’ ethical responsibilities Ethics and Law, Regulations, or Other
conflict with law, psychologists make Governing Legal Authority. If psycholo-
known their commitment to the Eth- gists’ ethical responsibilities conflict with
ics Code and take steps to resolve the law, regulations, or other governing legal
conflict in a responsible manner. authority, psychologists make known
their commitment to the Ethics Code
and take steps to resolve the conflict in a
responsible manner. If the conflict is unre-
solvable via such means, psychologists may
adhere to the requirements of the law, regula-
tions, or other governing legal authority.
Source: Adapted from “Redline Comparison of APA Ethical Principles of Psychologists and
Code of Conduct, December 1992 and December 2002,” APA, accessed January 9, 2013,
www.apa.org/ethics/code/92-02codecompare.pdf.
majority of task-force members worked in national security–related

positions.
The role and influence of the task-force members with military
backgrounds can be seen by consulting the archive of task-force e-mail
exchanges. Although the group worked largely in secret, the e-mail list
that was created for the committee was recorded and later made pub-
lic.19 The printed e-mail correspondence among committee members
runs to 219 pages and provides a window on the workings of the group.
The e-mail exchanges are striking because the initial deliberations of
the task force were framed by its military members, some of whom
had actually been involved with interrogations at Guantánamo Bay.
These two facts help explain both why the task force appears simply to
have assumed from the start that psychologists should be involved and
why, from the start, the central question taken up was what psycholo-
gists should do when US law conflicts with the APA code.
The e-mail exchange begins with the chair of the task force, Olivia
Moorehead-Slaughter, asking Michael Gelles, a military psychologist
with the Naval Criminal Investigative Service, to introduce an article he
had coauthored on the need “to adapt and interpret the ethical guide-
lines to a changing role of psychology that was beyond the treatment
32 Chapter One
room and the classroom.”20 The work of the task force thus begins with
comments on Gelles’s article. Although Gelles has been applauded for
his efforts to stop abusive practices he observed at Guantánamo Bay,
and although his introductory comments for the task force demon-
strate a nuanced appreciation of some of the moral issues facing psy-
chologists working in national security settings, it is nevertheless the
case that in these comments Gelles simply assumes that psychologists
should work in these settings and that the Code of Ethics may need
to be adjusted to provide relevant oversight and guidance. There is no
consideration of the possibility that the APA Code of Ethics may actu-
ally preclude psychologists from participating in national security–re-
lated interrogations or that the task force might at least want to discuss
endorsing a ban on the participation of psychologists.
In effect, the starting point for task-force deliberations—set by the
psychologists who had participated in interrogations—was not whether
psychologists should be involved but how they should be involved and
how their involvement could be made consistent with the APA Code of
Ethics. It is a very short step from this starting point to the issue of how
to negotiate apparent conflicts between psychologists’ participation
in interrogations and the APA code, and, indeed, it is a step that task-
force members took almost immediately. Within a half-dozen e-mail
exchanges of Gelles posing his framing statement, Colonel Morgan
Banks, the director of the army’s Psychological Applications Director-
ate and a task-force member, defines the central challenge facing the
task force to be how to handle “behavior that is legal under U.S. law,
but that may violate the APA ethical standards.”21 A few exchanges
later, Gerald Koocher, the incoming APA president and an ex officio
task-force member, affirms Banks’s assessment of the central challenge.
Koocher writes, “This is the crux of the matter!”22
In retrospect, it is not surprising that the section of the PENS re-
port dealing with section 1.02 of the 2002 APA Code of Ethics was the
focus of criticism of the report and of efforts to revise the APA code
and, therefore, of the task force’s findings. Here, then, the process and
substance issues are joined. The fact that the members of the task force
that the APA leadership selected were disproportionately psychologists
with military backgrounds led to the assumption that psychologists
should be involved in interrogations and that the central issue for con-
sideration was negotiating any conflicts with the APA code that might
arise from involvement by psychologists. This in turn resulted in sec-

tion 1.02 of the APA code being perhaps the most important section of
the code for task-force deliberations, for, as we saw above, this section
addresses conflicts between the code and US law or military orders.
Statement number 4 of the PENS report may thus be the most im-
portant section of the document, though the text of the statement is
unremarkable at first glance. It reads, “Psychologists do not engage in
behaviors that violate the laws of the United States, although psycholo-
gists may refuse for ethical reasons to follow laws or orders that are
unjust or that violate basic principles of human rights.”23 The problem
that emerges upon closer inspection is the difference between the be-
haviors “psychologists do not engage in” and those that “psychologists
may” or may not engage in. Psychologists do not break US law, but
they may follow orders that are inconsistent with the APA Code of Eth-
ics and violate basic principles of human rights.
The commentary following statement 4 clearly indicates that it is
section 1.02 of the APA code that allows for this slippage between “do
not” and “may”:
Psychologists do not engage in behaviors that violate the laws of the United
States, although psychologists may refuse for ethical reasons to follow laws
or orders that are unjust or that violate basic principles of human rights.
Psychologists involved in national security-related activities follow all ap-
plicable rules and regulations that govern their roles. Over the course of
the recent United States military presence in locations such as Afghanistan,
Iraq, and Cuba, such rules and regulations have been significantly developed
and refined. Psychologists have an ethical responsibility to be informed of,
familiar with, and follow the most recent applicable regulations and rules.
The task force notes that certain rules and regulations incorporate texts that
are fundamental to the treatment of individuals whose liberty has been cur-
tailed, such as the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment and the Geneva
Convention Relative to the Treatment of Prisoners of War.
The task force notes that psychologists sometimes encounter conflicts
between ethics and law. When such conflicts arise, psychologists make
known their commitment to the APA Ethics Code and attempt to resolve
the conflict in a responsible manner. If the conflict cannot be resolved in
this manner, psychologists may adhere to the requirements of the law.
34 Chapter One
(Ethical Standard 1.02) An ethical reason for psychologists to not follow the
law is to act “in keeping with basic principles of human rights” (APA Ethics
Code, Introduction and Applicability). The task force encourages psycholo-
gists working in this area to review essential human rights documents, such
as the United Nations Convention Against Torture and Other Cruel, Inhu-
man, or Degrading Treatment or Punishment and the Geneva Convention
Relative to the Treatment of Prisoners of War.24
This statement evinces an understandable concern for psychologists

working in national security–related environments in which “rules and
regulations have been significantly developed and refined” in ways that
arguably pose a conflict between ethics and law. When this happens,
the task force appears to say, psychologists, including the psychologists
on the task force who have been confronted with just this dilemma, can
follow the law and not the Code of Ethics. Why? Because section 1.02
of the code says they can.
The fact that section 1.02 appeared to provide room for psycholo-
gists to engage in coercive interrogations that violated at least the spirit
of the APA Code of Ethics can be seen from the reaction of critics to
the task-force report, as well as in the actions of the APA leadership in
response to criticism. Negative reaction to the PENS report was almost
immediate. The report was released on July 5, 2005, and the August
6, 2005, issue of the Lancet contained a condemnation of the APA po-
sition as “grossly unethical” and a “disgrace.”25 This kind of criticism
appears to have come as a surprise to task-force members, and the APA
leadership has repeatedly contested any interpretation of the report
that suggests that the APA sanctions the involvement of psychologists
in abusive interrogations.
Indeed, a review of the “Timeline of APA Policies and Actions Re-
lated to Detainee Welfare and Professional Ethics in the Context of
Interrogation and National Security,” a page maintained and regularly
updated on the APA website, suggests that the APA has consistently
sought to deny what a literal reading of the task-force report would ap-
pear to suggest; namely, that psychologists may be involved in coercive
interrogations as long as they do not violate US law or the appropriate
governing authority.26
For example, in approving the task-force report, the Council of Rep-
resentatives, the APA’s governing body, issued a statement at the end
of August 2005 that repudiated the idea that psychologists could abuse
detainees if they were ordered to do so. The press release issued by the
APA at the time highlights this fact:
Following the recommendations of the task force, the APA Council of Rep-
resentatives reaffirmed an Association resolution against torture and other
cruel, inhuman, or degrading treatment. The Task Force Report prohibits
psychologists from any participation whatsoever in such abusive behaviors
and places an ethical obligation on psychologists to be alert to and report
abusive behaviors to the authorities. The Council of Representatives stated
that there are no exceptional circumstances whatsoever, whether induced
by a state of war or a threat of war, internal political instability or any other
public emergency, that may be invoked as a justification for torture, includ-
ing the invocation of laws, regulations, or orders.27
Given the text of the PENS report, however, critics did not find this
statement satisfactory and sought further clarification of the APA posi-
tion and a change to the Code of Ethics that eliminated the apparent
loophole opened by the 2002 changes to section 1.02. The response of
the APA leadership was a series of resolutions adopted by the Council
of Representatives that progressively restricted any possibility of inter-
preting APA policy as allowing participation in abusive interrogations.
In August 2006, the Council of Representatives passed a resolution ac-
knowledging and affirming principle 2.2 of the UN Convention against
Torture and Other Cruel, Inhuman, or Degrading Treatment (CAT),
which states that there are no exceptional circumstances, including the
invocation of laws, regulations, or orders, that justify torture. In Au-
gust 2007, the council reaffirmed this commitment to the exceptionless
character of the prohibition against torture and specified techniques
that it categorically rejected, including “mock executions; water-board-
ing or any other form of simulated drowning or suffocation; sexual hu-
miliation; rape; cultural or religious humiliation; exploitation of fears,
phobias or psychopathology; induced hypothermia; the use of psycho-
tropic drugs or mind-altering substances; hooding; forced nakedness;
stress positions; the use of dogs to threaten or intimidate; physical as-
sault including slapping or shaking; exposure to extreme heat or cold;
threats of harm or death; isolation; sensory deprivation and over-stim-
ulation; sleep deprivation; or the threatened use of any of the above
techniques to an individual or to members of an individual’s family.”28
36 Chapter One
In addition, the Council of Representatives took a number of steps

in the years from 2008 to 2010 to limit the involvement of psychologists
in abusive interrogations. The council revised one of its antitorture res-
olutions to specify the international treaties and agreements applicable
to APA policies. It responded to a petition drive from APA members to
restrict the settings in which psychologists could be involved in national
security–related work. Specifically, the petition prohibited psycholo-
gists from working in “settings where persons are held outside of, or in
violation of, either International Law (e.g., the UN Convention Against
Torture and the Geneva Conventions) or the US Constitution (where
appropriate), unless they are working directly for the persons being
detained or for an independent third party working to protect human
rights.”29 The council moved to make this restriction APA policy in
February 2009. Finally, in August 2009, the council directed the APA
ethics committee to draft an amendment to section 1.02 to eliminate
the so-called Nuremberg defense that allowed psychologists to defend
their involvement in abusive interrogations by claiming that they were
following orders. In February 2010 the APA ethics code was revised to
eliminate the controversial language of section 1.02.
Competing Histories of the PENS Report

Not surprisingly, there are very different accounts of the history I have
just sketched. The account offered by the APA leadership is that the
various resolutions and clarifications documented on the “Timeline of
APA Policies and Actions Related to Detainee Welfare and Professional
Ethics in the Context of Interrogation and National Security” are es-
sentially restatements of the policy set out in the PENS report. Among
the items listed in this time line are APA responses to articles in the
Lancet, Washington Monthly, and Vanity Fair, and a response to an op-ed
by Amy Goodman, the host of Democracy Now.30 In each case, the APA
claims that critics have misunderstood the PENS report and that the
association categorically condemns the involvement of psychologists
in torture or cruel, inhuman, and degrading interrogation tactics. In
addition, the APA leadership points to the letters it sent to government
officials, which are listed on the time line. These include letters to Presi-
dents George W. Bush and Barack Obama, Attorneys General Michael
Mukasey and Eric Holder, CIA Directors Michael Hayden and Leon
Panetta, Secretary of Defense Robert Gates, the Senate Select Com-

mittee on Intelligence, both the House and Senate Armed Services
Committees, the Senate Judiciary Committee, and other government
bodies. The general message delivered in these letters is that the APA
opposes the involvement of psychologists in abusive practices.
By contrast, the history offered by critics of the PENS report and
APA actions in response to allegations of misconduct by psychologists
is that the APA undertook a series of grudging concessions to the pub-
lic outrage that greeted the PENS report and sought to portray APA
actions in a positive light, while simultaneously providing cover for psy-
chologists who continued to work with military interrogators at Guan-
tánamo Bay and elsewhere. For example, the Coalition for an Ethical
Psychology, a group formed in 2006 with the goal of ending the par-
ticipation of psychologists in national security–related interrogations,
has repeatedly accused the APA leadership of complicity with torture
and cruel, inhuman, and degrading treatment of detainees in American
custody. In a July 2010 statement, “Reclaiming Our Profession: Psychol-
ogy Ten Years after 9/11,” the coalition accused the APA leadership
of casting aside core ethical norms of psychology and then resorting
to intimidation to overcome any resistance to policy that allowed psy-
chologists to participate in abusive interrogations.31
Similar accusations were made by the coalition in a letter to APA
president Carol Goodheart in August 2010. The letter claims that the
APA leadership has misrepresented its role “in furthering and protect-
ing the government’s ‘enhanced interrogation’ torture program.” De-
spite the fact that the APA has issued a series of resolutions condemning
torture, “it has, in practice, twisted the language of these resolutions
and policies to align them with U.S. interrogation policy.”32
This letter also includes a bill of particulars supporting these allega-
tions. The list includes the following:
• Although a 2008 APA resolution prohibits psychologists from

any involvement with interrogations at sites that are in violation
of US or international law, the APA has refused to call for psy-
chologists at Guantánamo Bay or Bagram in Afghanistan to be
withdrawn, even though the International Committee of the Red
Cross has determined that both facilities violate international
law.
38 Chapter One
• Although in 2007 the Council of Representatives supported a

resolution specifying techniques that were prohibited, the leader-
ship changed the language of the resolution at the last minute
so that prohibited treatment would not be banned outright but
only if “used for the purposes of eliciting information in an inter-
rogation process.” Moreover, four techniques, “isolation, sensory
deprivation and over-stimulation and/or sleep deprivation,” were
only prohibited if “used in a manner that represents significant
pain or suffering or in a manner that a reasonable person would
judge to cause lasting harm.”
• Although the Council of Representatives passed a resolution
condemning psychologists’ involvement in “torture, cruel, inhu-
man, or degrading treatment or punishment,” it defined torture
and cruel, inhuman, or degrading treatment in terms consistent
with the infamous torture memos and not with international law.
That is, the definition was not based on CAT, but on the US reser-
vations to CAT—the same source used by Yoo and Bybee in the
torture memos to argue that the techniques used at Guantánamo
and by the CIA were not torture, cruel, inhuman, or degrading
treatment.
• Although the APA has strict conflict-of-interest policies, the APA
leadership has continued to appoint psychologists “whose careers
and income are beholden to military and/or intelligence agency
contracts on every committee and task force responsible for APA
ethics policy on interrogations and detention practices since
PENS.”33
What we see in these competing histories of APA action in the PENS

report and its aftermath are two fundamentally different narratives of
the role of the APA leadership in response to allegations of abuse by
psychologists in the war on terror. The story consistently articulated by
the Ethics Office of the APA is that, from the start, the association con-
demned both torture and cruel, inhuman, and degrading treatment of
detainees and that psychologists worked to prevent abuse and thereby
demonstrated why psychologists should be involved with detainee in-
terrogation. The counternarrative of APA actions offered by the Coali-
tion for an Ethical Psychology, Psychologists for Social Responsibility,
and others is that the association’s leadership sought to curry favor with
the Department of Defense because the military was a source of fund-

ing, power, and prestige for the field of psychology. For that reason,
the leadership publicly condemned the abuse of detainees but privately
and through mechanisms internal to APA bureaucratic structures actu-
ally facilitated the abuse.
Although deciding which of the competing narratives is most com-
patible with the available evidence is important, it is enough now to
note that the skirmishes around the PENS report and the actions taken
in response to the report were focused on the definitions of torture and
cruel, inhuman, or degrading treatment and on what to do if there is
conflict between the APA Code of Ethics and US law or the orders given
by commanding officers. I will turn to consider some of the issues asso-
ciated with definitional matters in chapter 3. For the remainder of this
chapter, however, I want to dwell a bit more on the matter of apparent
departures from the code. It is worth reflecting on the significance of
the fact that so much attention has been devoted to whether the code
permits certain actions and how to negotiate conflicts with the code, if
they arise. In the acrimony found in the competing narratives of APA
actions, it is easy to miss the fact that both sides are united in the be-
lief that the APA code is foundational for deciding how psychologists
should act in national security–related settings.
In an epigraph to this chapter, I quoted Philip Candilis’s observation
that the “public statement of a profession’s ethics serves a far wider
purpose than mere regulation of its membership.” The intensity of the
debate over the public presentation of the APA’s standards for the in-
volvement of psychologists in the interrogation of detainees in the war
on terror suggests that Candilis is correct. But it is also the case that the
public statement of a profession’s ethics serves to regulate the member-
ship of the profession. As I indicated in the introduction, this social-
trustee model of professional responsibility is sometimes thought to
be quaint and outdated. Yet it is nearly impossible to make sense of the
intensity of the debate about APA policy without taking seriously the
idea that psychologists, as professionals, are expected to pass judgment
on one another in relation to norms internal to the practice of psychol-
ogy as a profession.
While some sociologists may favor a neutral “expertise-based”
conception of professional life, it is clear that many professionals do
not. And at least in the case of the profession of psychology, the law
40 Chapter One
supports a social-trustee model. Indeed, one reason that psycholo-

gists on both sides of the debate about the PENS report have been so
adamant in their interpretations of the APA code is precisely that the
profession is regulated by laws that reflect or explicitly follow the APA
code. We will see this clearly in chapter 6 when we turn to consider the
complaints about military psychologists that have been filed with state
boards of psychology that oversee professional licensure in the field.
Conclusion
There can be little question that the role of professionals in American
society has undergone change during the past fifty years. As profes-
sional services have come to be understood largely in market terms, the
social-trustee model of professional life has waned. Many professionals
have come to think of themselves largely as hired guns serving only
those who pay for their expertise. Yet the social-trustee model survives,
at least in part, because the hired-gun model misconstrues how many
professionals actually understand their professional responsibilities.
Certainly the hired-gun model misconstrues how psychologists have
thought about their responsibilities in pursuing the war on terror. The
work of the APA presidential task force opened a deep fissure within the
field of psychology. But it was not a divide between those who under-
stood psychologists as shrinks for hire, whose only responsibility is to
the client/customer, and those who rejected that model. Indeed, those
on both sides of the divide believed that the Code of Ethics extended
to the work of psychologists qua psychologists, whoever their client
might be and whatever expertise psychologists brought to their work.
To be sure, the competing interpretations of what the code allowed
and prohibited were starkly different. Many within the APA leadership
believed that psychologists should have a role in national security–re-
lated interrogations, that the code not only allows for such a role but
essentially demands it. By contrast, the leadership of the Coalition for
an Ethical Psychology and Psychologists for Social Responsibility in-
sisted that the code is better interpreted as underwriting an absolute
ban on the involvement of psychologists. It is to the arguments for
these normative positions that I next turn. Nevertheless, I hope it is
clear, even before turning to these arguments, that what unites sup-
porters and critics of the PENS report may be more important than
what divides them; namely, a conception of psychology as a profession

that demands of its members adherence to a code of ethics that is bind-
ing wherever one works as a psychologist.
Notes
1. “Black sites” refer to secret prisons outside of US territory operated by US
government agencies.
2. The complaint against Larry James can be found in Michael Reese, Trudy
Bond, Colin Bossen, and Josephine Setzler to Ronald Ross, “Complaint Form—
Larry C. James, License No. 6492,” July 7, 2010, available on the Harvard Law
School Human Rights Program website, www.law.harvard.edu/programs/hrp/
documents/Larry_James_6492.pdf.
3. Committee on Armed Services, US Senate, Inquiry into the Treatment of De-
tainees in U.S. Custody, November 20, 2008, www.armed-services.senate.gov/Pub
lications/Detainee%20Report%20Final_April%2022%202009.pdf, 113–14. In his
book, Fixing Hell, James acknowledges that various abusive techniques were used
but disputes that he engaged in them or supported a policy that included such tech-
niques. We will return to the complaints lodged against James and others below.
For now, it is enough simply to have a list of the activities in which psychologists
may have been asked to engage.
4. “Detention in Afghanistan and Guantánamo Bay,” statement of Shafiq Rasul,
Asif Iqbal, and Rhuhel Ahmed, last modified July 26, 2004, available on the Center
for Constitutional Rights website, http://ccrjustice.org/files/report_tiptonThree
.pdf.
5. Ohio Revised Code, sec. 4732.01, “Psychologist Definitions,” LAWriter Ohio
Laws and Rules, last modified May 14, 2002, http://codes.ohio.gov/orc/4732.
6. APA Presidential Task Force, Psychological Ethics and National Security (here-
after, PENS report), 1; bracketed text in the original. Although the task force was
established in response to contemporaneous reports of abuse of detainees by psy-
chologists, this was not the first time the APA had addressed the issue of torture.
In 1985, the APA had issued a joint resolution with the American Psychiatric As-
sociation condemning torture “wherever it occurs” because “torture victims often
suffer from multiple, long-term psychological and physical problems” and because
“psychologists are bound to ‘respect the dignity and worth of the individual and
strive for the preservation and protection of fundamental human rights.’” (The
statement can be found on the APA website at www.apa.org/news/press/state
ments/joint-resolution-against-torture.pdf; accessed August 15, 2011.) Similarly, in
1986, the APA passed a resolution condemning torture and affirmed the UN Dec-
laration and Convention against Torture and Other Cruel, Inhuman, or Degrading
42 Chapter One
Treatment or Punishment. Nevertheless, in 2005, the board of directors was uncer-

tain whether previous statements by the APA or its Code of Ethics were sufficient
to address the role of psychologists in supporting national security in the changed
circumstances following the attacks of September 11, 2001. Hence the task force.
(Most of the APA documents related to issues of interrogation and torture can
be accessed through links at a webpage maintained by the association. That page
is available at www.apa.org/news/press/statements/interrogations.aspx; accessed
August 18, 2011.)
7. PENS report, 4. The style of APA ethics reports is that of a statement of fact,
i.e., “psychologists do not,” etc. This should be read as an imperative: psychologists
must not . . . 
8. PENS report, 1.
9. Mary Pipher, “Acting on Conscience,” Counterpunch, November 2, 2007,
www.counterpunch.org/2007/11/02/acting-on-conscience; Arrigo, “Psychologi-
cal Torture”; Stephen Soldz, “Protecting the Torturers,” Counterpunch, September
6, 2006, www.counterpunch.org/2006/09/06/protecting-the-torturers/.
10. A website associated with the movement to withhold dues from the APA
can be found here: “Some History and Information about ‘WithholdAPADues,’”
Psychologists for an Ethical APA, accessed August 18, 2011, www.ethicalapa.com/
Join_Withhold.html.
11. Olson, Soldz, and Davis, “Ethics of Interrogation and the American Psycho-
logical Association.”
12. The text of the 2002 code can be found here: “Ethical Principles of Psycholo-
gists and Code of Conduct,” APA, last modified October 8, 2002, available on the
Pacific Union College website, www.puc.edu/__data/assets/pdf_file/0020/31529/
APA-Ethics-Code.pdf. The 2002 code replaced the code from 1992 and was in turn
replaced by a revision adopted in 2010. The APA website has links to sites that
compare the 2002 version to the 1992 version: “Redline Comparison of APA Ethical
Principles of Psychologists and Code of Conduct, December 1992 and December
2002,” APA, last modified in 2002, www.apa.org/ethics/code/92-02codecompare
.pdf.
13. 2002 APA Code of Ethics, 3.
14. PENS report, 2.
16. Olson, Soldz, and Davis, “Ethics of Interrogation,” 8.
18. Ibid., 9.
19. “Email Messages from the Listserv of the American Psychological Associa-
tion’s Presidential Task Force on Psychological Ethics and National Security: April
22, 2005–June 26, 2006,” accessed May 22, 2012, posted by ProPublica at http://
s3.amazonaws.com/propublica/assets/docs/pens_listserv.pdf.
20. Ibid., 9.
21. Ibid., 16.
22. Ibid., 25.
23. PENS report, 5.
24. Ibid.
25. Wilks, “Stain on Medical Ethics,” 430.
26. “Timeline of APA Policies and Actions Related to Detainee Welfare and
Professional Ethics in the Context of Interrogation and National Security,” APA,
accessed May 22, 2012, www.apa.org/news/press/statements/interrogations.aspx.
27. “APA Council Endorses Ethical Guidelines for Psychologists Participating
in National Security-Related Investigations and Interrogations,” APA, August 29,
2005, www.apa.org/news/press/releases/2005/08/security.aspx.
28. “Reaffirmation of the American Psychological Association Position against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and
Its Application to Individuals Defined in the United States Code as ‘Enemy Com-
batants,’” APA, February 22, 2008, www.apa.org/about/policy/torture.aspx.
29. Minutes of APA Council of Representatives meeting, APA, February 20–
22, 2009, accessed May 22, 2012, www.apa.org/about/governance/council/09feb
-crminutes.aspx.
30. Wilks, “Stain on Medical Ethics”; Arthur Levine, “Collective Unconscio-
nable: How Psychologists, the Most Liberal of Professionals, Abetted Bush’s
Torture Policy,” Washington Monthly, January/February 2007, www.washington
monthly.com/features/2007/0701.levine.html; Katherine Eban, “Rorschach and
Awe,” Vanity Fair, July 17, 2007, www.vanityfair.com/politics/features/2007/07/
torture200707; Amy Goodman, “The Real Anti-torture President,” Seattle Post-
Intelligencer, April 10, 2008, www.seattlepi.com/local/opinion/article/The-real
-anti-torture-president-1269918.php.
31. “Reclaiming Our Profession: Psychology Ten Years after 9/11,” Coalition for
an Ethical Psychology, July 2010, www.ethicalpsychology.org/resources/reclaim
ing-our-profession.php.
32. “Coalition Open Letter on APA Complicity in Torture Interrogations,” Co-
alition for an Ethical Psychology, August 11, 2010, www.ethicalpsychology.org/re
sources/goodheart-8-11-10.php.
33. Ibid.
Two
What’s Wrong with Supporting

National Security?
Psychology and the Pursuit of
National Security
Rightly understood, professionalism has a civic dimension. The

theory of democratic professionalism . . . holds that a number of
key professions have civic roles to play in contemporary democracy
and that such civic roles both strengthen the legitimacy of profes-
sional authority and render that authority more transparent and
more vulnerable to public influence.
—Albert W. Dzur, Democratic Professionalism, 10
We saw in chapter 1 what a commitment to democratic deliberation

looks like in the context of a debate among professionals about their
role in serving the common good. At the core of the debate about
whether psychologists should be involved with national security–re-
lated interrogations was a disagreement about whether the expertise
gained through the study of human psychology could be used to de-
sign and implement coercive interrogations in the service of safeguard-
ing the common good. For the majority of the members of the PENS
task force the answer appeared to be that psychology could serve these
ends, even if the means to those ends might sometimes be in tension
with the code of ethics in the field. The leadership of the APA also ap-
pears to have held this view.
The fight that erupted within the APA demonstrates just how pas-
sionate democratic deliberation can be. Charges and countercharges
were made, alliances were formed, and strategies for doing battle were
devised. That violence did not ensue is perhaps testimony to the power
What’s Wrong with Supporting National Security? 45
of a code of professional ethics. Although battles were fought, the field

of combat was the APA Code of Ethics. As we saw, both sides were
constrained by that code, and both sought to interpret the code to sup-
port their position. As with all battles, there were winners and losers,
and although both sides might dispute this assessment, in my view, the
dissenters won.
Perhaps the most compelling piece of evidence supporting this as-
sessment is the shift in rhetoric of one of the central figures in the
debate, Gerald Koocher. From external appearances, Koocher is an
unlikely warrior. With a boyish face, wire-rimmed glasses, and an
ever-present bow tie, Koocher looks more the part of a kindly pedi-
atrician than a tough political insider with an acid pen. Yet Koocher,
a past president of the APA and an ex officio member of the PENS
task force—he represented the APA Council of Representatives to the
committee—was an outspoken advocate for the involvement of psy-
chologists in interrogations, and initially he showed very little regard
for constraints of international law. For example, in a notorious post to
the PENS e-mail list, Koocher wrote: “I have zero interest in entangling
APA with the nebulous, toothless, contradictory, and obfuscatory trea-
ties that comprise ‘international law.’ Rather, I prefer to see APA take
principled stands on policy issues where psychology has some scientific
basis for doing so.”1 Nor did he seem inclined to condemn abusive prac-
tices alleged to have involved psychologists. Instead, he condemned
the allegations. Writing in the “President’s Column” in Monitor on Psy-
chology, a publication of the APA, Koocher displayed his contempt. He
described the opponents of the PENS report as “opportunistic com-
mentators masquerading as scholars.” He claimed that when the APA
leadership asked for evidence of alleged abuses by mental health pro-
fessionals, critics provided none. “No data have been forthcoming from
these same critics,” Koocher wrote, “and no APA members have been
linked to unprofessional behaviors. The traditional journalistic dictum
of reporting who, what, where and when seems notably absent.”2
However, by 2009 Koocher appeared to recognize the need for a
stronger (and broader) condemnation of interrogation techniques.
Ethical standards in the mental health professions, he said, demand that
psychologists not engage in either deception or coercion. “Deceptive
and coercive interrogation techniques,” he wrote, “violate these moral
values.”3 From worrying only about whether psychologists may engage
46 Chapter Two
in coercive interrogations if they are following orders or not violating

US law, Koocher had arrived at a position that “engaging in illegal, in-
humane, cruel, degrading, or other torturous practices can never pass
as ethically acceptable conduct under any rationale.”4
Even if I am right that opponents of the PENS report prevailed in
demonstrating that the report left too much room for psychologists to
engage in abusive practices in national security–related interrogations,
and even if the opponents are right that this is exactly what the APA
leadership set out to do, the fact is that, in the end, the APA code was
mobilized and revised to insure that psychologists could not engage in
cruel, inhuman, or degrading interrogation practices and claim to be
acting as professional psychologists. Ultimately, no one was prepared to
dispute Robert Jay Lifton’s observation that “if a professional society is
unable to take a stand against torture, it is pretty much unable to take a
stand against any immoral behavior.”5
If Lifton’s observation crystallizes one issue that faced the APA as it
wrestled with the role of psychologists at Abu Ghraib and Guantánamo
Bay, it is not particularly illuminating when we turn to the broader is-
sues here. For it is one thing to claim that psychologists should not plan,
implement, or even monitor cruel, inhuman, and degrading forms of
interrogation; it is another thing to say that psychologists should not be
involved with national security–related counterterrorism work at all.
Yet critics of the PENS report have come awfully close to making a
categorical moral judgment against any participation by psychologists
in interrogations. We have not yet discussed this larger question of
whether taking a stand against torture and cruel, inhuman, or degrad-
ing treatment also commits one to opposing any role for psychologists
in national security–related work. It is to this question that I now turn.
Banning Psychologists from National Security–Related Work?

We can begin our consideration of this question by looking at the
position of those who advocate for a national security role for psy-
chologists. A good starting point for this examination is an article by
Scott Shumate and Randy Borum, “Psychological Support to Defense
Counterintelligence Operations,” which provides both the institutional
context for the emergence of “national security psychology” and a nor-
mative defense of this development.
The field of national security psychology is new and has emerged

through the work of military and civilian psychologists who have served
as consultants to the counterintelligence (CI) community. Historically,
each branch of the military had CI responsibilities for its own branch,
but in 2002 the Department of Defense (DOD) created the Counterin-
telligence Field Activity (CIFA) Agency with responsibilities for coor-
dinating CI throughout all DOD operations. Within this agency there
is a Directorate of Behavioral Sciences, which is staffed by a cadre of
psychologists and others whose responsibility is to support traditional
CI activities. The new agency’s commitment to the behavioral sciences
is thus substantial, and the need for psychologists, both military and
civilian, to work with CIFA has steadily grown.
What precisely do the psychologists within the Directorate of Be-
havioral Sciences do? Shumate and Borum explicitly discuss four
functions that national security psychologists may perform: (1) psycho-
logical risk assessment, (2) help in recruiting and training human assets,
(3) help in managing the relationship between a case officer and his or
her intelligence asset, and (4) consultation on the interrogation of an
uncooperative source.
The first of the four, risk assessment, primarily involves screening
and monitoring those involved with national security positions. Be-
cause employees who work in national security settings or agencies
have access to vital intelligence information, it is important that they
not be compromised or suffer work-related performance problems
from psychological vulnerabilities that could be avoided or amelio-
rated. In a sense, the services that psychologists perform in this area are
like ones they perform in other fields; for example, screening or design-
ing screening tests for any job applicant or providing counseling for em-
ployees whose psychological problems are affecting job performance.
If the first function is quite similar to work psychologists perform
in other organizations, the next three are fairly distinctive. Almost ev-
eryone in the intelligence community agrees that there is a need for
greater human intelligence; that is, more agents who have intimate
connections with groups that pose a national security threat. Recruit-
ing such agents is thus a high priority, but successful recruitment is
psychologically complex. For example, serving as a CI asset is likely to
generate a sense of competing identities and conflicting loyalties. How
individuals will handle the strain of such conflicts is important, but
48 Chapter Two
traditional psychometric tests are not designed to provide useful infor-

mation in this area. National security psychologists are thus needed to
help develop and refine tools for identifying potential recruits who will
negotiate the role of intelligence asset successfully.
Once a CI asset is recruited, the relationship of this asset to his or
her handler is likely to involve an elaborate dance that a psychologist
might help to choreograph. The case officer will need to manage the
relationship with careful attention to the credibility of the informant’s
information, as well as to ongoing threats to which the asset is vulnera-
ble, including psychological threats. According to Shumate and Borum,
psychologists can play a crucial role in helping a case officer manage an
asset.
Finally, psychologists can play a role in interrogating uncooperative
sources. Here Shumate and Borum make clear that they are not talking
about the kind of abusive interrogations that were conducted at Guan-
tánamo Bay and elsewhere. Instead, psychologists can use their insight
into human behavior and cognitive function to assist with interroga-
tions. And Shumate and Borum are categorical in their assessment that
psychologists can assist with interrogations without violating codes of
professional ethics. In a memorable formulation, they write, “It is abso-
lutely possible for a trained psychologist to offer assistance with inter-
rogation in an ethical manner.”6
For example, psychologists can evaluate how a detainee is respond-
ing to a particular line of questioning or a particular interviewer. They
can provide information about how memory functions and how vari-
ous stressors may affect memory. In short, psychologists “can draw on
the empirical literature bearing on persuasion and interpersonal influ-
ence to suggest potential strategies to counter and overcome a source’s
resistance,” and they can offer an assessment of a source’s credibility or
attempts at deception.7
Because passions run deep on the subject of the treatment of detain-
ees at Guantánamo Bay, it is important not to focus too narrowly on this
last function of consulting on interrogations, for Shumate and Borum
mean to defend a broad mandate for the involvement of psychologists
in the war on terror, one that extends not only beyond interrogations
but also beyond the other three functions identified in this article. For
example, in another article, Shumate and Borum are joined by other
counterterrorism professionals in noting the importance of research in
behavioral science to counterterrorism efforts. And they call for that

research to be “operationally relevant.”8 Although taken from outside
the field of counterterrorism strictly speaking, the example they cite
for operationally relevant research is instructive.
The example is research conducted by Robert Fein and Bryan
Vossekuil that challenged traditional assumptions about those who
seek to assassinate public officials.9 Instead of asking what makes
people become assassins—an important question but not one whose
answer is necessarily helpful in preventing an imminent assassination
threat—Fein and Vossekuil sought to discover whether there were dis-
cernible patterns of thinking and behavior that were correlated with
actual instances of assassination or assassination attempts that might
be used in the effort to prevent attacks. In the study, known as the Ex-
ceptional Case Study Project (ECSP), they reviewed the cases of eighty-
three persons who had attacked or nearly attacked public officials in the
United States over the previous fifty years. Their findings were surpris-
ing to many security officials and offered concrete recommendations
for assessing and managing threats to public figures. For example, most
attackers do not harbor a grievance toward the target, and in fact many
consider multiple targets. Also, mental illness does not appear to be a
critical factor, and none of those studied had issued a threat to the tar-
get prior to the attack.
As Borum et al. point out, the approach adopted in this study of
assassinations can be used to study threats to national security, but the
research must be driven by the needs of national security professionals
and not by questions of general scientific and psychological interest.
This point seems obvious enough, but it has a very significant impli-
cation. It means that those who conduct the study “must begin with
an understanding of the key ultimate questions that end users (e.g.,
investigators, intelligence analysts, defense, and security decisionmak-
ers, etc.) routinely are required to answer, the threshold decisions they
are required to address, and the environment in which that process oc-
curs.”10 The upshot is that those conducting behavioral science research
must work closely with security professionals and in settings that may
well be morally ambiguous.
Extending the model of the ECSP to address threats to national
security allows us to see that the list of functions psychologists may
serve in CI and counterterrorism is larger than we surveyed earlier.
50 Chapter Two
Borum and his colleagues list five additional areas in which operation-
ally relevant research could contribute to national security: information
gathering, intelligence analysis, resource deployment, identification of
intersystem relationships, and information integration. We do not need
to go into detail about each of these areas to see that psychologists,
and behavioral scientists generally, can contribute to the war on terror
by helping to collect, organize, analyze, assess, and disseminate intel-
ligence that may safeguard against attack.
If we now turn to the critics of the PENS report who advocate for
a “bright-line prohibition” against psychologists’ involvement in inter-
rogation, we note that they face a number of hurdles in making their
case. They need to show not only why involvement with interrogation
is wrong, but why such involvement is different from the other sorts of
involvement that we have just reviewed. Unless critics wish to rule out
any role for psychologists in national security activities, they will need,
for example, to explain why observing an interrogation in order to pro-
vide feedback to an interrogator about a source’s behavior is different
morally from analyzing the group behavior of a suspected terrorist cell
for signs that an attack is imminent. What are the arguments here?
We see an example of the argument for a bright-line prohibition
in the article that framed our original discussion of the PENS report
in chapter 1. As we saw, Olson, Soldz, and Davis sought to show that
abusive interrogations were not compatible with the APA Code of Eth-
ics and that where the task force appeared to suggest otherwise, the
committee had misinterpreted or misapplied the code. However, Ol-
son, Soldz, and Davis went further than condemning clearly abusive
interrogations; they suggested that a bright line is needed to demarcate
unacceptable involvement by psychologists and that the only defensible
line is between participation and nonparticipation. They write, “Be-
cause the risk of coercion and torture is inherent in these settings, the
bright-line position of no psychologist participation in the interroga-
tion process, at least for the time being, takes precedence over our best
but highly unrealistic wishes that psychologists are there to minimize
harm.”11
The reasoning here is a classic example of a slippery-slope argu-
ment: Although there may be no intrinsic objection to psychologists’ in-
volvement with interrogations that are based on, say, rapport-building
techniques, the current setting in which interrogations are conducted

makes it likely that any form of interrogation will degenerate into
abuse. In such circumstances, the argument goes, it is better not to be
involved at all. Slippery-slope arguments are, of course, notoriously
problematic, but in fairness to Olson, Soldz, and Davis, their argu-
ment is not simply that the slide into abusive behavior may occur; it
is that such a slide is likely and that there is evidence to that effect to
be found in the literature of social psychology.12 Milgram’s well-known
obedience studies and Zimbardo’s Stanford prison experiment are just
two studies that show how easily good people may turn abusive when
placed in an abuse-generating context.13
In a previously published piece, Olson and Soldz suggested that there
are other arguments that support noninvolvement. They make this
case in an essay in which they respond to an article that was originally
produced by a task force appointed by the Society for the Psychological
Study of Social Issues to examine research on interrogation and confes-
sions. The authors of that article, Mark Costanzo, Ellen Gerrity, and M.
Brinton Lykes, examined eight different ethics codes for psychologists,
drawn from multiple continents, from which they identified five “cross-
cutting” principles: (1) respect for the dignity and rights of persons, (2)
caring for others and concern for their welfare, (3) competence, (4) in-
tegrity, and (5) professional, scientific, and social responsibility.14
Olson and Soldz claim that principles (1) and (2) are fundamentally
incompatible with psychologists’ participation in interrogations. “In
even the best of circumstances, it is difficult to believe that psycholo-
gists involved in interrogations of alleged terrorists can follow these
key ethical maxims.”15 And the settings in which detainees are being
interrogated in the war on terror are not the best of circumstances. In
the circumstances that prevailed at least through 2007, when their essay
was published, it is “virtually inconceivable” that psychologists would
respect the dignity of the detainee or safeguard his welfare.
In introducing their argument, Olson and Soldz indicate that they
will draw on both ethical considerations and practical knowledge of
the actions of the BSCTs at Guantánamo Bay to make their case. The
problem with their argument is that it relies almost exclusively on the
assumption that because the involvement of psychologists in interro-
gations at Guantánamo Bay violated both the principles that the APA
52 Chapter Two
Code of Ethics sets out as well as the principles articulated by Costanzo,

Gerrity, and Lykes, involvement with interrogation of any sort would
also violate this principle. But what is the basis for that assumption?
That such an assumption is mistaken is suggested by the fact that
the relevant international human rights conventions do not make
this assumption. For example, the Geneva Convention Relative to the
Treatment of Prisoners of War anticipates that prisoners will be inter-
rogated, but seeks to set the limits of such interrogations. It thus speci-
fies that “the questioning of prisoners of war shall be carried out in
a language which they understand” (art. 17) and that “no physical or
mental torture, nor any other form of coercion, may be inflicted on
prisoners of war to secure from them information of any kind what-
ever” (art. 17).16 The fact that (a) article 14 of the convention specifies
that respect for prisoners and their honor must be shown in all circum-
stances and (b) questioning of prisoners is expected and accepted sug-
gests that the framers of the convention repudiated the assumption
that grounds the bright-line prohibition of Olson and Soldz.
At this point, Olson and Soldz face the second obstacle noted above;
namely, that if they reject psychologists’ participation in interrogations
they are logically committed either to condemn other roles for psychol-
ogists in national security operations or to show that participation in
interrogations is somehow different from these other roles. Unfortu-
nately, the closest they seem to come to distinguishing interrogation
of detainees from other activities of psychologists is in disputing the
comparison between domestic forensic psychology and foreign intelli-
gence work, a point they make in the essay written with Martha Davis.
They begin by noting that the PENS report seeks to understand the
work of psychologists in national security settings by comparing it with
the work of psychologists in other contexts. They note the report’s
contention that “it is consistent with the APA Ethics Code for psycholo-
gists to serve in consultative roles to interrogation . . . as psychologists
have a long-standing tradition of doing in other law enforcement con-
texts.”17 Admittedly, there is a long tradition of forensic psychologists
interviewing criminal suspects for assessment of mental status or gen-
eral fitness to stand trial, as there is a tradition of psychologists con-
ducting research on detecting deception and other aspects of criminal
investigations.
Yet, according to Olson and Soldz, this comparison of the role of

psychologists in law enforcement with their role in national security
interrogations is flawed. They offer three reasons why the comparison
is flawed. The first is that psychologists do not have supervisory respon-
sibilities in domestic law enforcement settings. Further, psychologists
do not sit in on interrogations. They may help train investigators by
offering workshops on relevant topics, but they are not members of the
interrogation teams.
Second, psychologists working within the criminal justice system
operate in settings where the rule of law is firmly established. Prisoners
have basic constitutional rights, and these rights are legally recognized
and protected by the system itself. In contrast, psychologists involved
with the interrogations of detainees in the war on terror work in set-
tings where standard legal protections are not afforded to prisoners.
They have no right to an attorney, no right against self-incrimination,
no right even to know what the charges against them are. As Olson and
Soldz put it in their article with Martha Davis, “such extreme violations
of liberty are inevitably, in and of themselves, psychologically harmful
and demeaning to the profession of psychology.”18
Third, psychologists working in the criminal justice system have ac-
cess to colleagues and resources they can consult in negotiating any
ethical issues that might arise in their role as consultants. By contrast,
psychologists working for the military or the CIA are constrained by
secrecy, chain of command, and geographical distance, which makes
consultation with independent psychologists nearly impossible.
As much as I sympathize with the position that Olson and Soldz are
seeking to defend, I do not think that they have made their case. It is
puzzling, for example, that they would claim in their first point that if
psychologists participate in domestic interrogations they cease to be
psychologists and become law enforcement officers instead, for one of
the conclusions of the PENS report that they emphatically endorsed
was that “all U.S. psychologists, regardless of their different applied,
research-based, or practitioner roles, were to be held fully accountable
to all sections of the APA ethics code.”19 In other words, psychologists
do not cease to be accountable to the professional code of ethics simply
because they function in nontraditional roles. Nor does their first line
of argument address precisely how to distinguish morally the various
54 Chapter Two
roles psychologists may play, even in relation to interrogation. They say,

for example, that one difference between the unacceptable participa-
tion in interrogations at Guantánamo Bay and the acceptable partici-
pation in domestic settings is that in the latter psychologists do not sit
in on the interrogations or help shape the contours of the interroga-
tions. Yet they acknowledge that, in domestic forensic work, psycholo-
gists “present the results of linguistic or behavioral analyses of prior
interviews.”20 Presumably, however, these analyses are used in decisions
about how to proceed with the investigation or prosecution, which
may involve future interrogations. Does the moral judgment we make
about the participation of psychologists thus come down to whether
they are in the interrogation room? I doubt that Olson and Soldz would
want to answer yes to this question, but it seems to be the logical con-
clusion of their argument.
The arguments in the second and third points also appear to be
weak. In fact, they reproduce a problem that we already identified.
They do not address the question of whether there is anything in-
trinsically problematic about psychologists being involved with inter-
rogations, but instead focus on the problems that faced psychologists
involved with interrogations at Guantánamo Bay and Abu Ghraib. The
fact that psychologists working in settings where international human
rights conventions are ignored is problematic does not mean that psy-
chologists may not work in settings where the rule of law is in evidence.
Are there arguments that Olson and Soldz are missing? To answer
that question, we might attempt to apply the principles identified by
Costanzo, Gerrity, and Lykes to some cases of CI work. Shumate and
Borum provide a useful case study for consideration. In the scenario
they sketch, DOD investigators were monitoring the activities of a
suspected terrorist cell when they discovered that one member of the
cell had long-standing ties with an active-duty service member who ap-
peared to be unaware of his friend’s apparent terrorist involvement.
The investigators sought to recruit the service member into the role of
“access agent” to provide them with information about his friend and
the friend’s cell.
Recognizing that using the service member as an access agent would
present a number of psychological issues, the investigators worked with
an operational psychologist to develop a plan for evaluating the service
member’s suitability for the role, the best way to approach recruiting
him, how to monitor his psychological status during the operation,

and how to reintegrate him into his regular service responsibilities.
Throughout the operation, the psychologist met with both the case of-
ficer and the access agent to evaluate the psychological dimensions of
the ongoing operation.
Does the psychologist’s involvement with this counterterrorism
operation violate the five principles that Costanzo, Gerrity, and Lykes
identified as the common norms governing the conduct of psycholo-
gists internationally? It is hard to see how it does. Both the case officer
and the psychologist were concerned about the access agent’s welfare,
and they structured their approach to him in such a way that he would
have a sense of what the operation would involve before he consented
to the operation. As best as we can tell from Shumate and Borum’s
description of the case, the psychologist was competent to advise,
monitor, and evaluate the operation, and the operation itself served
a social good. There would undoubtedly be uncertainties in a case of
this sort—was the friend really a member of a terrorist cell; might the
psychological costs be higher than anticipated; and so forth—but as-
suming the psychologist was competent and acted with integrity, his
or her actions do not appear to have violated the five principles. As in
the case of interrogations, in this scenario a psychologist might suc-
cumb to the pressure of the situation and act irresponsibly—in this case
recommending that the operation go forward even knowing that using
a friend, even one who perhaps had already betrayed him, would be
deeply emotionally traumatic for the access agent—but that such an
outcome might result is not reason to believe that the psychologist’s
involvement is per se wrong.
A Rorschach Test
Although I disagree with Olson and Soldz that an absolute ban on the
involvement of psychologists with interrogations and other national
security–related activities is morally required, their concern is reason-
able and should not be restricted to involvement with interrogation. In
effect, I am advocating a middle-of-the-road position that accepts the
involvement of psychologists in interrogations and other counterter-
rorism activities, but with serious concerns about the dangers that ac-
company this involvement. Regrettably, most of the literature on the
56 Chapter Two
professional responsibility of psychologists in national security clusters

around the extreme positions, so mapping the middle ground is diffi-
cult. Acknowledging this reality, it may be useful to explore a mediating
position in a case that tends to be a Rorschach test for identifying which
of the extremes one finds attractive.
Unlike our previous case, this one is not hypothetical. We know the
details of the case because it involved criminal prosecution for con-
spiracy to transmit information relating to national defense, attempted
transmission of national defense information, and obtainment of na-
tional defense information, all of which are violations of federal law.
The defendants, Theresa Marie Squillacote and Kurt Alan Stand, were
convicted of these crimes and appealed their convictions all the way to
the US Supreme Court, which declined to hear the case. Because of this
legal history, we have a richly textured account of a national security–
related operation that involved psychologists working with the FBI to
catch and prosecute a spy. Indeed, even the dry recitation of the facts in
the legal documents reads like a John le Carré novel.21
The Squillacote case raises difficult ethical and legal issues, and we
need a fairly detailed account of the case before us if it is to be useful to
our deliberations. Some of the facts of the case are disputed, but I will
follow the account of the facts as rehearsed in the decision of the US
Court of Appeals for the Fourth Circuit, which upheld the convictions
of Squillacote and Stand. Even a mere chronology of the case is some-
what lengthy, but it is helpful to have a time line.22
• 1930s—Kurt Stand’s parents flee Hitler’s Germany.

• Early 1970s—Stand begins working for Lother Ziemer, a mem-
ber of the Hauptverwaltung Aufklärung (HVA), the foreign intel-
ligence arm of East Germany’s intelligence agency.
• 1976—Stand recruits James Michael Clark to become an HVA
source.
• 1979–81—Stand recruits his wife, Theresa Squillacote, to work
for the HVA. Squillacote has an affair with Ziemer.
• 1985–89—The HVA trains Squillacote and Stand and pays $40,000
in travel expenses for them.
• 1991—Squillacote obtains a job as an attorney at the DOD and
gets security clearance and access to classified documents.
• 1992—Ziemer is arrested and convicted but released. The FBI

learns of the existence of three spies, two men and a woman,
working out of Washington, DC.
• 1995—Squillacote obtains a PO box under the name “Lisa Mar-
tin” and sends Ronnie Kasrils, the deputy defense minister of
South Africa, a letter hinting at a possible intelligence operation.
• 1996:
° The FBI gets a Foreign Intelligence Surveillance Act (FISA)
warrant for clandestine electronic surveillance of all calls to
and from Squillacote’s home and office.
° The FBI Behavioral Analysis Program (BAP) profiles Squilla-
cote and designs a “false flag” operation to catch her.
° Posing as Kasrils, the FBI sends “Lisa Martin” a letter seeking a

meeting between Squillacote and Kasrils’s emissary.
° An undercover FBI agent, posing as a South African intelli-
gence officer, meets with Squillacote.
• 1997:
° Squillacote turns over four classified DOD documents to the
undercover FBI agent.
° Squillacote and Stand are arrested.
For our purposes, of course, the focal point in the time line is the in-
volvement of the FBI BAP, for it was at that point that psychologists
were involved in this security operation. What precisely did the BAP
do?
Essentially, the BAP reviewed all FBI files on Squillacote, including
audio- and videotapes made under the FISA warrant. It also reviewed
third-party psychological evaluations of Squillacote, and the point of
the entire analysis was to construct a psychological profile of her that
would inform FBI efforts to obtain evidence against her. A passage
from the BAP reports provides a sense of its work. The BAP team as-
signed Squillacote the code name “Loftiest Shade” (LS), as we see in the
following passage from the report.
LS walks with a limp due to her prosthetic right limb. She flaunts her handi-
cap wearing clothing that highlights her limb, and she takes offense when
someone makes a joke about handicapped people. She suffers from cramps
58 Chapter Two
and depression and is taking the anti-depressants Zoloft and Diserel. . . . The

subject’s family has been beset with depression; her mother was prone to
depression; her sister committed suicide; and her brother is taking anti-de-
pressants. LS has wide mood swings. When things are going her way, on
her own agenda, she laughs, is very upbeat, and is full of energy. When she
feels as though she is losing control and is under stress (which is the major-
ity of the time), she became [sic] hysterical, sobs, and screams.23
In a section titled “Personality Characteristics,” we find the follow-

ing: “This person reflects a cluster of personality characteristics often
loosely referred to as “emotional and dramatic.” She needs constant at-
tention and approval. She reacts to life events in a dramatic, over-emo-
tional fashion, calling attention to herself at every opportunity. . . . She
is totally self-centered and impulsive. She has no concern for applying
logic to thought or argument about long-term issues such as ethics,
loyalty or most other moral reasoning.”24
On the basis of this analysis, the BAP recommended that the FBI
undertake an undercover operation in which an agent would pose as
a South African intelligence officer. The recommendation was precise
and detailed. The approach to Squillacote should be made within a year
of the loss of her East German contact, with whom she had been ro-
mantically involved, because this was the time when she would be most
vulnerable and thus most approachable. The agent should be a man
because “she appears to possess the mind of a newly pubescent child,
tending to seek an ‘idealized’ relationship with men who are not able,
for various reasons, to respond to her.” The agent should be profes-
sional and somewhat aloof. He should bring her a personal gift, ideally
a biography, because that was Squillacote’s favorite type of book. The
initial meeting should leave Squillacote “beguiled and craving more at-
tention.” The agent should not talk about money during the first meet-
ing; he should appeal to “their shared desire to advance the ‘New South
Africa’ being built by the ANC dominated government.”25
The BAP also provided recommendations for dealing with Squilla-
cote after she was arrested. It suggested that two female FBI agents
should interview her and that their “approach should be matter-of-fact
businesslike (i.e., ‘I need you to talk about this.’) rather than appealing
to her emotions.” It noted that once she was arrested she might at-
tempt suicide, and it would thus “be prudent at the appropriate time to
advise individuals close to her (i.e., her husband, brother, and attorney)
of the potential danger.”26
What should we make of the role of the BAP team, which included
at least one psychologist, in this national security operation? As I sug-
gested earlier, this case tends to be polarizing, and two commentaries
on the case display the divisions pretty clearly. Charles Ewing and Mi-
chael Gelles, for example, argue that the psychologist’s involvement is
entirely consistent with APA ethical principles. Admittedly, some harm
might have come to Theresa Squillacote, but that potential harm must
be balanced against the harm to national security if she leaked classified
material to foreign governments.27 And the codes of both the American
Psychiatric Association and the American Psychological Association
recognize that a psychologist may have to balance competing goods
or evils. By contrast, Philip Candilis reaches the exact opposite conclu-
sion. He, too, acknowledges that cases like Squillacote’s may require
weighing of individual and social goods and that codes of professional
ethics allow for such balancing. Nevertheless, Candilis strikes the bal-
ance very differently: “The doctrines of professional ethics, legal ethics,
role morality, and social contract theory all oppose the actions of the
FBI psychologist.”28
Who is right here? Does the Squillacote case demonstrate the valu-
able (and ethical) contribution that psychologists can make to national
security activities, or does it show precisely why psychologists must
not participate in CI work? I hope it is clear by now that my answer
to this question is going to be “neither.” Although there are aspects of
the Squillacote case that are deeply troubling, I do not believe that it
supports those who would ban psychologists from national security–re-
lated work altogether.
The first thing to notice about this case is that it took place in a set-
ting structured by the rule of law. To be sure, the operation was con-
ducted in secret, but FBI surveillance is approved through proper legal
channels, and, once she was arrested, Squillacote had the full array of
legal rights provided for those under indictment for criminal miscon-
duct, which is indeed why we know precisely what was done in this
case. In this respect, the Squillacote case is a better vehicle for delib-
erating about the role of psychologists in the war on terror than is
reflecting on whether psychologists should have been involved with
interrogations at Guantánamo Bay. Olson and Soldz’s worries about
60 Chapter Two
the abuse-producing context of national security interrogations should

largely be absent here.
Once again, applying Costanzo, Gerrity, and Lykes’s five principles
may be useful. Recall the principles: (1) respect for the dignity and
rights of persons, (2) caring for others and concern for their welfare,
(3) competence, (4) integrity, and (5) professional, scientific, and social
responsibility. When Olson and Soldz used these principles to assess the
involvement of psychologists in the interrogation of detainees, they fo-
cused primarily on the first two principles, and there was a reason. As
important as competence, integrity, and responsibility are, they largely
address the question of how a professional’s expertise is used and not
the ends to which it is put or the means that bring about those ends. Yet
it is often difficult to know whether a psychologist acted competently
and with integrity in any given case.
For example, although we know a great deal about the Squillacote
case, we may not know enough fully to assess whether the psycholo-
gist involved acted with integrity in helping to shape the BAP report,
for we do not know exactly what role he or she played in the process.
However, we do know what the BAP recommended, and we can ask
whether its recommendations are consistent with a commitment to the
first two principles. My answer to this question is mixed. On the one
hand, the BAP team clearly treated Squillacote as a competent agent
capable of making an autonomous, if treacherous, decision to betray
her country. As far as we can tell, Squillacote’s legal rights were not vio-
lated, and she initiated contact with a South African official even before
the FBI launched its false-flag operation. On the other hand, I believe
the BAP team may not have shown sufficient concern for Squillacote’s
welfare, given the plan it devised.
The irony here is that, in one sense, it may not have been possible
fully to follow both the principle of respect for persons and that of car-
ing for others and concern for their welfare in this case. By this I do not
mean that treating Squillacote as a rational agent capable of making
autonomous decisions would foreseeably result in harm to her when
she was arrested and imprisoned. (A concern of this sort about impris-
onment would involve a trivialization of the principle of care and con-
cern for welfare.) Instead, I have in mind the palpable tension in the
BAP report between the plan that treats Squillacote as a rational agent
capable of making decisions for which she can be held morally and
legally liable and the portrait it paints of her as an extraordinarily dam-

aged and fragile human being. The fact that the report itself acknowl-
edges that there was a possibility that Squillacote might attempt suicide
if the undercover operation was successful and she was arrested is per-
haps the strongest piece of evidence here, but there are others as well.
The report makes clear, for example, that her family life was a mess.
We read that she ignored and neglected her two children, ages ten and
twelve, and that she frequently left them to care for themselves. Her
home is described as resembling a construction site, with closets so
jammed with stuff that they were unusable. We are told that she was
incapable of genuine friendship and was a loner who avoided social
contact when she could. We know that she was under the care of a psy-
chotherapist and was being treated for depression. Admittedly, I am not
competent to make a mental health assessment of Theresa Squillacote;
I have neither the training nor the access to the wealth of information
about her that was available to the BAP. Nevertheless, the unflattering
portrait of Squillacote painted in the BAP report certainly raises ques-
tions about her stability and whether there was not another way to dis-
cover if she was selling classified documents and, if so, to minimize the
damage done by those leaks and to prevent future ones, while at the
same time not pushing Squillacote to the brink of suicide.29
There are two other issues that merit consideration in discussing the
Squillacote case. Gerald Koocher framed the first in the essay “Ethics
and the Invisible Psychologist,” from which I quoted earlier in the chap-
ter. The general ethical issue to which Koocher draws our attention
is that psychologists are increasingly serving as consultants to clients
who seek psychological evaluation of third parties who are not the psy-
chologists’ clients and who are unaware that they are being evaluated.
Psychologists now routinely consult in litigation, consumer advertising
and marketing plans, employment and management decisions, politi-
cal polling, and many other contexts where those being evaluated may
arguably be harmed by the work of psychologists about which they are
unaware. Koocher states the moral problem succinctly: “The invisible
psychologist’s work may have direct dire consequences for third parties
who have no role in the confidential contract [between the psychologist
and the client]. In addition, the invisibility tends to shield such psychol-
ogists from clear lines of accountability for their own ethical behavior
because any evidence of their role may remain undetectable.”30 We
62 Chapter Two
have seen this concern about accountability before. It is this concern

that informs Olson and Soldz’s argument that psychologists should
not be involved in interrogations in settings that violate US or interna-
tional law. Is this a genuine concern in the Squillacote case? Although
the assessment of Squillacote was conducted in secret and without her
knowledge or consent, there is, nevertheless, clear accountability here.
The fact that there is such extensive documentation about the case al-
lows for precisely the sort of review in which we are engaged. Cer-
tainly, too, the courts provided a detailed review of the activities of the
FBI in this case.
Indeed, the second issue worth noting at this point emerges precisely
because there was a process of review. In the appeal of her conviction,
Squillacote’s lawyers noted that among the conversations that were
monitored under the FBI surveillance of Squillacote were privileged
communications between Squillacote and her therapists. Moreover, the
lawyers argued that these communications were used in preparing the
BAP report and the undercover operation that ensnared Squillacote.31
While the courts held that the conversations between Squillacote and
her therapists were privileged, they did not agree that evidence ob-
tained from actions based on BAP recommendations—which in turn
may have been partly based on two privileged conversations—should
be excluded.
Whatever one thinks of the legal ruling, there are questions that
may be raised about the propriety of psychologists using privileged
communications between Squillacote and her therapists as a basis for
formulating a psychological profile of Squillacote and a plan to “take
advantage of her emotional vulnerability” that “includes suggestions
designed to exploit her narcissistic and histrionic characteristics.”32 We
do not, of course, know precisely what the psychologist did when pre-
sented with the transcripts of the privileged conversations, and so we
cannot conclude that he or she violated norms of professional conduct.
For all we know, the psychologist may have objected and reported the
problem to the agent supervising the operation. But we can make a
general observation. The perception of impropriety may be as damag-
ing as any actual impropriety, and it is hard not to be troubled knowing
that the BAP team had access to confidential information and sought
to exploit Squillacote’s vulnerabilities, which may have been identified
partly through access to that information.
Philip Candilis has stated the difficulty very powerfully: “The mere
perception of a government psychologist’s disavowing forensic protec-
tions and using deception against a suicidal individual is damaging. Are
private thoughts and feelings, which a psychologist has special powers
to exploit, fair game, or will the community view the intrusion as Or-
wellian? . . . The social contract with psychologists is not likely to toler-
ate the perception that government clinicians are secretly available to
record and manipulate private thoughts.”33 The moral question is not
the narrow one of whether any particular action of the FBI psycholo-
gist violated the APA Code of Ethics or principles distilled from various
codes of professional ethics drawn from around the world. The ques-
tion explores a broader horizon, for codes of ethics do not exist merely
to regulate the behavior of members of a guild; they in fact signal a
social contract that needs to be negotiated and maintained. This is a
point Candilis makes in response to FBI special agent John Schafer’s
arguments that the FBI behavioral analysis team acted properly in the
Squillacote case. The public statements of a profession’s ethics as ar-
ticulated in a code of ethics, Candilis writes, “are a public recognition
of reciprocal obligations, a social contract that, although not absolute,
frames the moral discussion.”34
I will take up the issue of medical professionalism in a later chapter,
but the comparison to the social responsibilities of physicians is helpful
at this point as well.35
Those who have written on medical professionalism point out that
physicians have a responsibility that extends beyond their relationship
to individual patients, for societies can abandon the sick and vulner-
able, just as individuals can. Medical professionalism thus protects so-
cial values as well as vulnerable persons. In committing as a profession
to the sick and the vulnerable, even at the expense of individual inter-
ests, physicians provide a stabilizing social influence. Yet, as Wynia et
al. point out in their treatment of medical professionalism, “the social
role of professionalism as a stabilizing force is not unique to the medi-
cal profession. Complex societies in different times and places have had
in common a need for meritocratic, dedicated sub-groups that function
to keep private interests and government power in balance through at-
tention to greater social goods.” They continue: “Professions protect
not only vulnerable persons but also vulnerable social values. Many
values are vulnerable: individuals and societies may abandon the sick,
64 Chapter Two
ignore due process in judging guilt or innocence of a person accused of

a crime, provide inadequate support for education, propagate informa-
tion that suits those in power while stifling different perspectives, and
so on.”36
When Candilis writes that the “social contract with psychologists is
not likely to tolerate the perception that government clinicians are se-
cretly available to record and manipulate private thoughts,” I believe he
has something like this concern in mind. It is not just the fact that Squil-
lacote was being manipulated and possibly entrapped with the help of
psychologists that is morally troubling; it is that the social value of re-
spect for persons and their autonomy appears to have been sacrificed
in this case. As we will see in chapter 9, understanding the relationship
between dignity and autonomy is important for addressing the appro-
priate limits of national security–related actions.
I asked earlier whether there was anything intrinsically problematic
with the involvement of psychologists in interrogations, and the Squil-
lacote case may now help us to answer this question. I do not believe
that there is anything intrinsically wrong with psychologists consulting
on interrogations or working with a BAP team to assess the best way
to draw out a suspected spy. Where psychologists cross the line is in us-
ing their training in an effort to strip others of autonomy. At that point
they move from applying their knowledge forcefully or even coercively
to using it brutally. The effort to break the will, to turn a person’s most
acute psychological vulnerabilities against him to get him to do your
bidding, is what unites the abusive interrogations at Guantánamo Bay
and the Squillacote case. Both could have been handled differently, but
psychologists in both cases violated a foundational social norm and
thereby broke the social compact between psychology as a profession
and a democratic commitment to autonomy and respect for persons.
Jeremy Waldron has cited Hannah Arendt in characterizing what is
wrong with torture. It is not the fact that torture is coercive or abusive
that makes it repugnant; it is that it reduces a human being to a “quiv-
ering mass of ‘bestial, desperate terror.’”37 I will return to this point at
some length in chapter 9. For now, let me simply note that we tend to
think of this effort to strip a person of his humanity as quintessentially
accomplished through the infliction of physical pain, but it can be at-
tempted without physical pain. Psychological manipulation or, for that
matter, the administration of truth serum, may equally dehumanize
another. If the profession of psychology is to serve a stabilizing function

in society, it must clearly take a stand against such dehumanization.38
Notes
1. “Email Messages from the Listserv of the American Psychological Associa-
tion’s Presidential Task Force on Psychological Ethics and National Security: April
22, 2005–June 26, 2006,” accessed May 22, 2012, posted by ProPublica at http://
s3.amazonaws.com/propublica/assets/docs/pens_listserv.pdf, 159–60.
2. Koocher, “Speaking against Torture.”
3. Koocher, “Ethics and the Invisible Psychologist,” 102.
4. Ibid., 106.
5. Quoted in Peltz, “Learning from History,” 715.
6. Shumate and Borum, “Psychological Support to Defense Counterintelligence
Operations,” 289.
7. Ibid.
8. Borum et al., “Role of Operational Research,” 425.
9. Fein and Vossekuil, “Assassination in the United States.”
10. Borum et al., “Role of Operational Research,” 425.
logical Association.”
12. In conversation, Brad Olson has suggested that his argument is not rooted in
the idea of a slippery slope. Instead, the point is that in a situation where detention
is unlawful or unethical, psychologists should not be involved, period. This is a fair
reading of part of the argument, but the idea of a comprehensive bright-line prohi-
bition is, I believe, ultimately rooted in worries about a slippery slope.
13. Milgram, Obedience to Authority; Zimbardo, Lucifer Effect.
14. Costanzo, Gerrity, and Lykes, “Psychologists and the Use of Torture,” 8.
15. Olson and Soldz, “Positive Illusions.”
16. Geneva Convention Relative to the Treatment of Prisoners of War (Third
Geneva Convention), 75 UNTS 135, International Committee of the Red Cross,
August 12, 1949, available on the UN High Commissioner for Refugees website,
www.unhcr.org/refworld/docid/3ae6b36c8.html.
logical Association,” 6.
18. Ibid.
19. Ibid., 2.
20. Ibid., 6.
21. David Grann, “The Stasi and the Swan,” New Republic, April 19, 1999,
19–27.
22. United States v. Theresa Marie Squillacote, 221 F.3d 542 (4th Cir. 2000).
66 Chapter Two
23. “National Security Division (NSD) Behavioral Analysis Program (BAP)

Team Report Loftiest Shade,” appendix D in Petition of Writ of Certiorari at 111a,
Squillacote, 221 F.3d 542 (4th Cir. 2000) (No. 99-4088), available on the Federation of
American Scientists website, www.fas.org/irp/ops/ci/squill/appendix.pdf.
24. Ibid., 112a.
25. Ibid., 113a, 8a, and 117a.
26. Ibid., 118a.
27. Ewing and Gelles, “Ethical Concerns in Forensic Consultation.”
28. Candilis, “Reply to Schafer,” 455.
29. Given that the goal of the sting operation was the arrest and prosecution
of Squillacote, it is surprising that there is no explicit discussion of mens rea in the
BAP report.
30. Koocher, “Ethics and the Invisible Psychologist,” 98.
31. It is important to note that only the first two conversations between Squil-
lacote and her therapists that were recorded were listened to and transcribed. Once
the supervising FBI agent learned of the conversations she instructed agents not to
listen to, index, or transcribe these conversations.
32. “National Security Division (NSD) Behavioral Analysis Program (BAP)
Team Report Loftiest Shade,” 112a and 8a.
33. Candilis, “Reply to Schafer,” 455.
34. Ibid., 453.
35. In drawing on the idea of medical professionalism I do not mean to suggest
that the norms of clinical psychology apply to all psychologists, whether they are
seeing patients or not. Some of the criticism of the involvement of psychologists
in national security work comes close to equating psychologists with doctors. I do
not accept that equation.
36. Wynia et al., “Medical Professionalism in Society,” 1612.
37. Waldron, “Torture and Positive Law,” 1726.
38. The issue of administering a truth serum has not received enough attention.
It might be counterintuitive, but I think using a truth serum may be understood as
torture. On this point, see Gilbert Meilaender, “Stem Cells and Torture,” Weekly
Standard, June 2009.
Three
Interrogating Justice
The Torture Memos and the
Office of Legal Counsel
Torture is rarely solo work. It is a systematic practice, institutional-

ized by nations and states, supported hierarchically, and requiring
the participation of professionals of many stripes.
—Nancy Sherman, The Untold War, 147
In the first two chapters, we saw how professionals in the field of psy-
chology became involved in interrogations of detainees in the war
on terror that arguably amounted to torture. Some psychologists fa-
cilitated abusive practices, but others sought to end any support for (or
participation in) abusive interrogations. In some cases, the very same
psychologists who facilitated abuse also belatedly sought to curtail it.
Yet, as Nancy Sherman rightly notes, torture and abuse are the end
points of an interlocking set of activities, which typically involve pro-
fessionals of many stripes. Our discussion of the role of psychologists
thus needs to be supplemented by a consideration of the activities of
other professionals in the war on terror. And few can deny the pro-
found role that attorneys have played in this war.
The Office of Legal Counsel

Given that our focus is on the use of coercive interrogations in the war
on terror, the natural starting point for our discussion is the so-called
torture memos and the work of the attorneys who produced them.1
Most references to “the torture memos” are restricted to three memo-
randa produced by the Office of Legal Counsel (OLC) at the DOJ—the
unclassified Bybee memorandum, the classified Bybee memorandum,
68 Chapter Three
and the Yoo memorandum—and these three memoranda will be the

focus of much our discussion below. Nevertheless, it is important to
note that there are at least eight memoranda, produced under three
different directors of the OLC, that address the issue of interrogation
techniques, and we will need to examine some of the other memo-
randa as well. Three additional memoranda are particularly important.
The memorandum issued by Daniel Levin, acting assistant attorney
general, in December 2004 is significant because it explicitly repudi-
ates the reasoning but not the conclusions of the unclassified Bybee
memorandum. Similarly, two memoranda issued by Steven Bradbury,
principal deputy assistant attorney general, in May 2005, known as
the “Techniques” and “Combined Techniques” memoranda, merit
attention.2
To gain a sense of the role the interrogation memoranda played in
abusive interrogations, it is necessary to understand the function of the
OLC. The OLC provides legal advice to the executive branch of the
government, including the president, and OLC opinions are binding on
the executive branch. The OLC website provides a very clear descrip-
tion of the office’s responsibilities:
The Office of Legal Counsel provides authoritative legal advice to the Presi-
dent and all the Executive Branch agencies. The Office drafts legal opin-
ions of the Attorney General and also provides its own written opinions
and oral advice in response to requests from the Counsel to the President,
the various agencies of the Executive Branch, and offices within the De-
partment. . . . The Office also is responsible for providing legal advice to
the Executive Branch on all constitutional questions and reviewing pend-
ing legislation for constitutionality. All executive orders and proclamations
proposed to be issued by the President are reviewed by the Office of Legal
Counsel for form and legality, as are various other matters that require the
President’s formal approval.3
Because the OLC is effectively the unit within the federal govern-
ment to which executive-branch agencies turn when novel legal ques-
tions arise, it is not surprising that it fell to the OLC to determine the
legality of various interrogation techniques that federal counterterror-
ism units considered using in the aftermath of the attacks of September
Interrogating Justice 69
11, 2001. The immediate occasion of the interrogation memos was a

request from John Bellinger III, the legal adviser to the National Secu-
rity Council, to the OLC seeking clarification about what techniques
the CIA could legally use in interrogating suspected terrorists captured
in Afghanistan and elsewhere. Specifically, the CIA sought clarification
about twelve techniques that it considered using on captured al-Qaeda
member Abu Zubaydah.4
Work on the questions raised by the CIA is found in OLC log sheets
as early as April 2002, and John Rizzo, the acting general counsel for the
CIA at the time, is listed as the client. As OLC lawyers began to work
on the questions raised by the National Security Council, the CIA, and
the White House counsel, drafts of two different memoranda—one
classified, the other unclassified—emerged. By all accounts, although
the memoranda went out over the signature of Jay Bybee, the head of
the OLC at the time, John Yoo, deputy assistant attorney general with
the OLC, was the principal author of both memoranda. Both were is-
sued in August 2002.
In addition to the two memoranda, on August 1, 2002, John Yoo sent
a six-page letter to Alberto Gonzales, the White House legal counsel,
which summarized the findings of the OLC memoranda. Yoo’s state-
ment of the questions addressed by the OLC is thus a nice roadmap for
navigating the two memoranda. Yoo writes:
You have requested the views of our Office concerning the legality, under
international law, of interrogation methods to be used during the current
war on terrorism. More specifically, you have asked whether interroga-
tion methods used on captured al Qaeda operatives, which do not violate
the prohibition on torture found in 18 U.S.C. § 2340-2340A, would either:
a) violate our obligations under the Torture Convention, or b) create the
basis for a prosecution under the Rome Statute establishing the Interna-
tional Criminal Court (ICC). We believe that interrogation methods that
comply with § 2340 would not violate our international obligations under
the Torture Convention, because of a specific understanding attached by
the United States to its instrument of ratification. We also conclude that
actions taken as part of the interrogation of al Qaeda operatives cannot
fall within the jurisdiction of the ICC, although it would be impossible to
control the actions of a rogue prosecutor or judge.5
70 Chapter Three
Effectively, the memoranda took up the question of what standards of

conduct should be applied in deciding appropriate action under the an-
titorture provisions of federal law. This in turn raised questions about
the history of US support for the UN CAT, because the sections of the
US Code under consideration are those that serve to implement Ameri-
can responsibilities under the CAT agreement.
The unclassified Bybee memorandum addressed the complex issues
raised by an analysis of the CAT agreement and US law. The memo-
randum is divided into six parts. Parts 1 through 4 discuss the text and
history of section 2340 of title 18 of the US Code, the text, ratifica-
tion, and negotiating history of CAT, the Torture Victims Protection
Act, and international legal cases that have addressed the question of
what interrogation techniques rise to the level of torture. Parts 5 and
6 of the memorandum discuss whether the president’s commander-in-
chief powers may override section 2340 and whether a necessity or self-
defense argument may justify the use of interrogation methods that
violate section 2340.6
The unclassified Bybee memorandum concluded that none of the
interrogation techniques proposed by the CIA could be classified as
torture under section 2340 and that even if they were torture, either
the president, exercising his powers as commander in chief, could still
authorize their use, or a necessity defense would defeat any effort at
prosecution under federal law. Less well known is the response in the
legal community to the arguments in both Bybee memoranda when
those memoranda became public in June 2004.
To be sure, Yoo, Bybee, and other lawyers who supported the ag-
gressively permissive interpretation of US and international law were
vilified in some quarters. But as in the case of psychologists who fa-
cilitated abusive interrogations, the more interesting professional
responses were collective or institutional or both. For example, in Au-
gust 2004, 130 attorneys sent an open letter to President George W.
Bush condemning the lawyers who prepared the Bybee memoranda
for failing “to meet their professional obligations.”7 The list of signers
included seven past presidents of the American Bar Association (ABA),
twelve former federal judges, and a former director of the FBI.
Among the signers was the chair of the ABA Task Force on the
Treatment of Enemy Combatants. It is worth noting that the ABA res-
olution condemning torture appeared almost simultaneously with the
open letter to President Bush. The resolution, adopted August 9, 2004,

is striking for its full-throated condemnation of torture, but also for
its condemnation of those who sought to authorize torture.8 The first
item of the resolution makes this clear. It reads, “RESOLVED, That the
American Bar Association condemns any use of torture or other cruel,
inhuman or degrading treatment or punishment upon persons within
the custody or under the physical control of the United States govern-
ment (including its contractors) and any endorsement or authorization of
such measures by government lawyers, officials and agents” (italics mine). If
there was any question whether the ABA statement had as one of its
targets the Bybee memorandum and its authors, that doubt is dispelled
when the statement calls for amending sections 2340(1) and 2340A of
title 18 of the United States Code so that they prohibit torture “regardless
of the underlying motive or purpose,” and for initiating “appropriate
proceedings against persons who may have committed, assisted, autho-
rized, condoned, had command responsibility for, or otherwise partici-
pated in such violations [of law].”9
At this point, we could turn to an examination of the work of the
Task Force on the Treatment of Enemy Combatants and the role the
ABA played in assessing the conduct of the lawyers involved in the tor-
ture memos, just as we did in the case of psychologists and the APA.
But professional accountability takes place both at a macro level—for
example, with the application of a general code of professional eth-
ics—and at a micro level, with the application of specific codes that are
expected to govern particular work environments. In the case before
us, examining the standards to which lawyers of the OLC are held is
particularly illuminating. This examination is facilitated by the fact that
the DOJ conducted an investigation of the work of Yoo and Bybee in
preparing the interrogation memoranda, and it is to that investigation
that we turn.
The Investigation of the Office of Professional Responsibility

Although I will focus below on the review conducted within the DOJ
on whether the work of Yoo and Bybee constituted professional mis-
conduct, we should not lose sight of the fact that it was the concern of
other professionals—expressed both individually and institutionally—
about the work of Yoo and Bybee that led to the DOJ investigation.
72 Chapter Three
Indeed, the report of the investigation specifically cites the criticisms of

Harold Koh, then dean of Yale Law School, Scott Horton, past chair-
person of the International Human Rights Committee of the New York
Bar Association, and the open letter discussed above as providing the
context for the investigation.10 The concerns, widely expressed, about
the quality of the work in the interrogation memoranda, combined
with an official request for an investigation by Congressman Frank
Wolf, led the OPR to initiate a formal investigation in October 2004.11
The OPR is the unit within the DOJ responsible for investigating
allegations of misconduct by DOJ attorneys and for recommend-
ing changes in policies and procedures if an investigation reveals that
changes are needed. Although it does not have subpoena power over
those outside the DOJ, it can compel testimony of those within the
DOJ, and it has the authority to collect department documents. At
the conclusion of an OPR investigation, the office issues a finding of
whether an attorney has engaged in professional misconduct or merely
shown poor judgment, or neither. The policy of the DOJ is to notify
relevant bar authorities when a lawyer has been found guilty of pro-
fessional misconduct at the end of an OPR investigation. And it is im-
portant to note that the end of an OPR investigation comes when its
findings are reviewed by a senior-level DOJ official and either accepted
or rejected. As we will see, Associate Deputy Attorney General David
Margolis did not accept the findings of the OPR investigation of Yoo
and Bybee, and the DOJ did not refer the findings of the investigation
to the relevant state bar authorities for disciplinary action.12
The OPR’s report of its findings acknowledges with exquisite un-
derstatement that “this was not a routine investigation.”13 One hun-
dred thirty of the country’s most distinguished attorneys condemned
the work of Yoo and Bybee as unprofessional; the ABA recommended
amending a federal statute so that it could not be misread as it had been
by Yoo and Bybee; and the United States was vilified as a torture regime
for actions authorized by the Yoo and Bybee memoranda. This was the
environment in which the OPR conducted its investigation.
The investigation was, to say the least, not swift. Begun in Octo-
ber 2004, it did not conclude with the issuance of the final report until
July 2009. As the report makes clear, there were many obstacles to a
quick and complete investigation. There were delays in obtaining secu-
rity clearances for OPR personnel; many witnesses from the CIA and
White House refused to meet with the OPR; important e-mails of John
Yoo and Patrick Philbin, deputy assistant attorney general at the OLC,
were lost; and additional revelations about the CIA interrogation pro-
gram emerged during the course of the investigation. As we will see,
there were other problems as well.
The findings of the OPR investigation can be stated succinctly by
quoting the report. John Yoo “committed intentional professional mis-
conduct when he violated his duty to exercise independent legal judg-
ment and render thorough, objective, and candid legal advice.” Jay
Bybee “committed professional misconduct when he acted in reckless
disregard of his duty to exercise independent legal judgment and ren-
der thorough, objective, and candid legal advice.”14 No other DOJ of-
ficials were found to have committed professional misconduct.
In reaching its conclusions, the OPR drew upon a variety of sources,
including a document titled “Principles to Guide the Office of Legal
Counsel”; the Model Rules of Professional Responsibility; title 28, part
77, of the Code of Federal Regulations; Ethical Standards for Attorneys
for the Government; and the OPR’s own “Analytical Framework.” For
example, the OPR’s “Analytical Framework” sets out the elements nec-
essary to a conclusion of professional misconduct as well as defining
what an “intentional” violation includes and what constitutes “reckless
disregard” of an obligation. The elements of professional misconduct
are as follows: “A Department attorney engages in professional miscon-
duct when he or she intentionally violates or acts in reckless disregard
of an obligation or standard imposed by law, applicable rule of pro-
fessional conduct, or Department regulation or policy. The elements
essential to a conclusion that an attorney committed professional
misconduct, then, are that the attorney (1) violated or disregarded an
applicable obligation or standard (2) with the requisite scienter. A vio-
lation or disregard of an obligation or standard does not necessarily
constitute professional misconduct if, under the circumstances, it is de
minimis.”15 If this is the standard, what are the arguments that Yoo and
Bybee violated it? The OPR’s answer to that question is found in part 3
of its report, in which it analyzes various OLC memoranda regarding
interrogation techniques. For our purposes, we can focus on its analysis
of the unclassified Bybee memorandum.
The OPR begins its analysis by noting that both the unclassified
and classified Bybee memoranda and the Yoo memorandum were
74 Chapter Three
withdrawn by the OLC as inadequate before the OPR completed its

investigation. It thus relied to some degree on the analysis of OLC law-
yers other than Yoo and Bybee who repudiated the legal argumentation
found in the unclassified Bybee memorandum, but it did not confine its
analysis solely to the problem sections identified by others. In particu-
lar, the OPR focused on six areas discussed in the memorandum: (1)
specific intent, (2) severe pain, (3) the ratification history of the CAT, (4)
US judicial interpretations, (5) international legal decisions, and (6) the
commander-in-chief powers and possible defenses to a charge of tor-
ture. Effectively, the OPR concluded that, when viewed together, the
discussion of these six topics in the memorandum “did not represent
thorough, objective, and candid legal advice.”16
The reasons were various. The section on specific intent, for ex-
ample, left the impression that an interrogator who inflicted severe
pain would not violate the torture statute even if his intention were to
cause pain, so long as the goal of causing pain was to obtain informa-
tion. The reason it was important to define specific intent is that under
federal antitorture statutes a defendant violates the law only if he spe-
cifically intends to cause the severe pain that is constitutive of torture.
By treating specific intent as it did, therefore, the unclassified Bybee
memorandum in effect concluded that there could be no such thing
as interrogational torture. In supporting this conclusion the memoran-
dum misleadingly and erroneously conflated intent and motive, and
it treated specific intent as if there were an unambiguous and precise
standard acknowledged in the law. Yet, according to the OPR, the Su-
preme Court has repeatedly commented on the lack of precision in the
distinction between “general intent” and “specific intent,” a fact that
the memorandum either ignores or glosses over.
For similar reasons, the OPR found the unclassified Bybee memo-
randum’s analysis of “severe pain” badly inadequate. Once again, the
conceptual, legal analysis is crucial, because for an act to be torture
it must cause severe pain and suffering. Unfortunately, the memoran-
dum’s treatment of severe pain is so contrived that it is hard to read it
as objective. The memorandum begins this treatment by noting that
the Supreme Court accepts a plain-meaning-of-the-words starting point
for construing statutory language, and this is the starting point that the
memorandum uses as well. It notes various dictionary definitions of
“severe” and concludes that severe pain is pain that is “difficult for the
subject to endure.” Then, notoriously, the memorandum turns to a sec-

tion of the US Code that defines medical emergencies to help clarify
the meaning of severe pain. The reasoning found in the memorandum
is worth quoting at length.
Significantly, the phrase “severe pain” appears in statutes defining an emer-

gency medical condition for the purpose of providing health benefits. These
statutes define an emergency medical condition as one “manifesting itself
by acute symptoms of sufficient severity (including severe pain) such that
a prudent lay person, who possesses an average knowledge of health and
medicine, could reasonably expect the absence of immediate medical atten-
tion to result in—placing the health of the individual . . . (i) in serious jeop-
ardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction
of any bodily organ or part.” Although these statutes address a substantially
different subject from Section 2340, they are nonetheless helpful for under-
standing what constitutes severe physical pain. They treat severe pain as an
indicator of ailments that are likely to result in permanent and serious phys-
ical damage in the absence of immediate medical treatment. Such damage
must rise to the level of death, organ failure, or the permanent impairment
of a significant body function. These statutes suggest that “severe pain,”
as used in Section 2340, must rise to a similarly high level—the level that
would ordinarily be associated with a sufficiently serious physical condition
or injury such as death, organ failure, or serious impairment of body func-
tions—in order to constitute torture.17
P. F. Strawson once concluded about a passage in Kant’s Critique of

Pure Reason that it contained “a non sequitur of numbing grossness.”18
The OPR report does not dismiss the unclassified Bybee memoran-
dum’s reasoning in such memorable terms, but the critique is the same.
As the report points out, the medical benefits statutes at issue do not
define “severe pain,” but rather medical emergency, and they do so in
terms of “serious jeopardy” to health, “serious impairment to bodily
functions,” and “serious dysfunction of any bodily organ or part.”
Moreover, according to the OPR report, the language used to gloss the
medical benefits statutes is deeply (and perhaps intentionally) mislead-
ing. “The words chosen to paraphrase the statute,” the OPR writes,
“tended to heighten the severity of the listed consequences . . . ‘serious
jeopardy’ became ‘death,’ ‘serious dysfunction of any bodily organ’
76 Chapter Three
became ‘organ failure,’ and ‘serious impairment of bodily functions’

became ‘permanent damage.’” The OPR thus concludes that the mem-
orandum’s authors rephrased the language of the statutes “to add fur-
ther support to their ‘aggressive interpretation’ of the torture statute,”
when in reality the medical benefits statutes provide almost no sup-
port for the conclusion that, to be severe, pain must rise to the level
associated with death, organ failure, or serious impairment of bodily
function.19
We do not need to review each of the other sections individually to
summarize the OPR report accurately by saying that the basic conclu-
sion is that Yoo and Bybee deployed shallow, biased, and sloppy legal ar-
gumentation to justify a preordained position without acknowledging
alternative interpretations of the law or the tenuousness of their own
conclusions. This summary objection has sometimes been character-
ized by saying that Yoo and Bybee engaged in ends-driven legal rea-
soning, by which critics mean that Yoo and Bybee knew that the Bush
administration wanted complete latitude in interrogating detainees in
the war on terror and therefore cobbled together implausible legal ar-
guments to authorize what the administration wanted.
Although the substance of this critique has some merit, dismissing
Yoo and Bybee’s approach as ends driven may not be the most per-
spicuous way of framing the point, for even the OPR report acknowl-
edges that OLC guiding principles indicate that the office should take
executive-branch goals into account and “assist their accomplishment
within the law.”20 The problem is thus not that Yoo and Bybee sought to
serve the ends of the Bush administration in making the strongest case
possible for a position the administration wanted; it is that the means
by which they undertook this task did not serve other ends or goals
set by professional standards for lawyers at the DOJ and by the Model
Rules of Professional Responsibility. Although the guidelines for OLC
lawyers were promulgated after, and at least in part in response to, Yoo
and Bybee’s work at the OLC, they capture what former OLC lawyers
understood to be their professional responsibility. The guidelines are
quite clear about the necessity of not simply giving a green light to
executive-branch desires. “When providing legal advice to guide con-
templated executive branch action,” the guidelines read, “OLC should
provide an accurate and honest appraisal of applicable law, even if that
advice will constrain the administration’s pursuit of desired goals.”21
And the OPR report makes it clear that providing an accurate and hon-
est appraisal of applicable law is not just an aspirational goal set out
by the OLC after the fact; for example, the District of Columbia Bar
Association’s “Rules of Professional Conduct” require that “a lawyer
shall exercise independent professional judgment and render candid
advice.”22
Unfortunately, this is precisely what Yoo and Bybee failed to do in
the memoranda they wrote on the legality of particular interrogation
techniques. Indeed, this is the central conclusion of the OPR report.
The professional misconduct that Yoo and Bybee committed was not
approving the use of the EITs requested by the CIA; it was failing to
support their conclusions with the thoroughness, objectivity, and can-
dor that professional standards require.23 This is an important point to
which I will return shortly.
The Justice Department Rejects the OPR’s Findings

The failure of Yoo and Bybee to support their conclusions with solid
legal reasoning is no small matter, but it is in some ways a procedural
problem and not a substantive one. This may in fact explain why Asso-
ciate Deputy Attorney General Margolis did not accept the findings of
the OPR and why the DOJ did not refer Yoo or Bybee for disciplinary
action. The reason I say this is that, in setting out his reasons for not ac-
cepting the OPR’s findings, Margolis does not in fact endorse the legal
work of Yoo and Bybee; instead, he raises process issues about the OPR
investigation itself. It is almost as if Margolis reasons as follows: The
OPR concluded that professional misconduct was committed because
Yoo and Bybee had an end in view from the start and they used every
means—that is, every legal argument—possible, however specious, to
reach that end. But the OPR seems to have done the same thing. It
believed Yoo and Bybee should be found guilty of professional miscon-
duct and it compromised the integrity of the process by seeking to find
them guilty, whatever it took.
Examining the main contours of his case for not accepting the OPR
recommendations reveals that many of Margolis’s objections are pro-
cess issues. For example, Margolis notes that the OPR contacted then–
attorney general Michael Mukasey on December 23, 2008, to inform
him of its plan to release the report on January 12, 2009. It asked that
78 Chapter Three
a sensitivity review be conducted before the release date and that a

meeting be scheduled with the attorney general so that the OPR could
review its findings with him before the OPR report was released. Mar-
golis then quotes Mukasey’s and Deputy Attorney General Mark Filip’s
response to the OPR, in which they noted that the period between De-
cember 23 and January 12 would not be enough time to do a thorough
review of the 191-page, single-spaced report, even if it did not fall dur-
ing the Christmas and New Year’s holiday season. Moreover, Margolis
points out, the custom is for a draft of the OPR’s findings to be given
to the subject of the investigation so that he or she can respond. This
would not have occurred in this case, had the Office of the Attorney
General not intervened. Even had Yoo and Bybee been given a draft
when the attorney general received one, the scheduled release date of
January 12, 2009, “would have precluded any meaningful opportunity
for such review” by Yoo and Bybee.24
Even more damning in terms of process, says Margolis, is that the fi-
nal version of the OPR report is dramatically different from the Decem-
ber 2008 draft that the OPR was prepared to release in January 2009.
This is significant because the basis for an OPR finding of misconduct
needs to be rooted in the analytical framework governing OPR inves-
tigations, and there is no discussion of the analytical framework in the
December 2008 draft. Margolis’s reaction might fairly be characterized
as astonishment. He writes: “In a departure from standard practice and
without explanation, OPR in its initial two drafts analyzed the conduct
of the attorneys without application of OPR’s own standard analytical
framework. . . . I have held my current position with the Department
for nearly seventeen years. During that time, I have reviewed almost
every OPR report of investigation. OPR developed its framework over
a decade ago and to the best of my recollection has applied it virtually
without exception since that time.”25
In addition to the fact that in the early drafts the OPR did not tether
its findings to the analytical framework that is supposed to govern such
investigations, it made substantial changes in its arguments after receiv-
ing Yoo’s and Bybee’s responses to the December 2008 draft. Margolis
documents these changes in reasoning and is clearly and appropriately
sympathetic to Yoo’s complaint that the OPR had done precisely what
it accused Yoo and Bybee of doing. In his response to the draft of the
OPR report, Yoo anticipated this outcome. Margolis quotes Yoo’s
response: “OPR goes to great lengths to criticize what it asserts was

ends-driven legal reasoning in the Bybee Memoranda, but dressing up
OPR’s Draft Report with newly concocted postmortem ‘findings’ will
but prove that OPR has itself engaged in exactly this alleged sin.”26 On
this point, Margolis found Yoo to be prescient; this is exactly what OPR
did in its final report, and in Margolis’s view this shows that the stan-
dard that was used to reach the OPR’s findings was “neither known
nor unambiguous,” as the OPR’s general guidelines require. It is worth
quoting Margolis’s conclusion at length:
The fact that OPR’s standard for analysis changed from a second draft,
which [was] issued four and half years after it began its investigations, to
the final report in and of itself likely establishes that the standard that it ul-
timately applied was neither known nor unambiguous. There are, however,
similarities between OPR’s description of the standards that it applied in
the drafts and in the final report even though the drafts specifically reached
findings of identified bar rules and the final report reached a finding of
violation of an obligation to be thorough, candid, and objective. Nonethe-
less, the evolution of the analytical standard combined with the fact it was
gleaned in part from a “best practices” memorandum issued after these
events, the fact that OPR’s analysis failed to address other potentially ap-
plicable rules and opinions from the District of Columbia, and the fact that
evidence in the records calls into question the appropriateness of applying
broad standards of conduct reflected in after-the-fact “best practices” to at-
torneys answering novel and difficult legal questions for a limited audience
at a time of national crisis lead me to conclude that the standard at which
OPR arrived in its final report, to wit the highest standard of thorough-
ness, candor and objectivity, is not unambiguously established by law, pol-
icy, rule, or the record and fails to distinguish between the Department’s
expectations of its attorneys and the less stringent minimal requirements
established by Rules of Professional Conduct.27
We saw in the first two chapters that process issues can have impor-
tant substantive consequences, and we see that again with Margolis’s
findings. He does not agree with the legal analysis found in the Yoo and
Bybee memoranda, but if in fact there was professional misconduct
in this case, the OPR failed to prove it because the process by which
the OPR conducted its investigation and reached its conclusions was
80 Chapter Three
deeply flawed. Not only did the OPR not use the appropriate analytical
framework in reaching its original conclusions, and not only did the
office fail in providing Yoo and Bybee sufficient time to respond before
the OPR’s planned release of its findings, there were other problems as
well. When Yoo and Bybee did respond, the OPR failed to demonstrate
in its final report that their arguments were inadequate to defeat the
findings; it instead found new reasons for condemning Yoo and Bybee’s
work.
What conclusions, then, should we draw at the end of this prolonged
investigation into professional responsibility? One conclusion might be
that the whole process was a waste of time, talent, and money. Margo-
lis himself seems to have anticipated the frustration that his decision
was likely to generate, and he clearly wanted to avoid the conclusion
that the OPR investigation was a waste of time. Toward the end of the
nearly seventy-page memorandum explaining his conclusion, Margolis
writes, “OPR’s findings and my decision are less important than the
public’s ability to make its own judgments about these documents and
to learn lessons for the future.”28
I agree with Margolis about this, but I would add that the profes-
sionals at the DOJ who conducted the investigation, however flawed it
was, provided a public service with this investigation if only by fram-
ing the issues for public review and by pushing for high standards of
professional conduct within the OLC, even if they themselves did not
meet the highest standards for which one might hope. We will have to
wait to see whether the OPR learned any lessons from its investigation
of Yoo and Bybee, but it is clear that the OLC sought to implement
higher standards for legal argumentation after this review of its attor-
neys’ work.
Margolis reasonably questioned the OPR’s use of OLC documents
produced after Yoo and Bybee left the DOJ, but that does not detract
from the fact the OLC sought greater clarity about the responsibilities
of its attorneys after the Bybee memoranda came to light. Within six
months of the release of the memoranda to the public, nineteen for-
mer OLC attorneys had drafted and signed the “Principles to Guide the
Office of Legal Counsel.”29 The document does not attempt to assess
the work of any particular OLC lawyers; it rather sets out ten principles
that may serve as standards for attorneys working for the OLC.
There were also other efforts within the OLC to clarify expecta-
tions of office lawyers. For example, on May 16, 2005, Steven Bradbury,
principal deputy assistant attorney general, issued a memorandum for

attorneys of the OLC with the subject heading “Best Practices for OLC
Opinions.”30 The memorandum included sections on evaluating opin-
ion requests; soliciting the views of interested agencies; researching,
outlining, and drafting opinions; conducting secondary review of draft
opinions; finalizing opinions; and publishing opinions.
Although neither this memorandum nor the statement about guid-
ing principles for the OLC included any mention of the Yoo and Bybee
memoranda, the OPR clearly thought the standards set out in these
documents were violated by Yoo and Bybee. Whether the work of Yoo
and Bybee would have been different had these standards been explic-
itly articulated before their work on the interrogation memoranda is a
question to which we cannot know the answer. Nevertheless, as David
Cole points out in an important article, although the reasoning of Yoo
and Bybee was repudiated by the OLC after their memoranda came
to light, the substantive conclusions that they sought to justify with
their flawed arguments were not abandoned. It is well and good to talk
about their memoranda as a “slovenly mistake,” as “riddled with er-
ror,” and as a “one-sided effort to eliminate any hurdles posed by the
torture law” (as other OLC lawyers did),31 but, at the end of the day, the
conclusions Yoo and Bybee reached were upheld in subsequent OLC
opinions written after the clarification of guidelines and principles for
OLC attorneys was promulgated.
Cole’s point is that Yoo and Bybee’s OLC critics have focused atten-
tion on the scantily clad legal arguments of Yoo and Bybee to distract
attention from the fact that the rule of law has disappeared through
the trapdoor of subsequent OLC memoranda. Why, Cole asks, are we
not focused on the fact that the subsequent memoranda issued by the
OLC all upheld the legality of the CIA engaging in torture and cruel,
inhuman, and degrading interrogation techniques? Why, he asks, “did
the OPR and Margolis [both] fail to consider the legality of the brutal-
ity itself ?”32
Cole notes the irony in the fact that, however critical of Yoo and By-
bee the OLC lawyers who came after them were, these lawyers always
emphasized the necessity of taking into account that Yoo and Bybee
worked in crisis circumstances in which another terrorist attack was
thought to be imminent. Yet, even if this is a mitigating circumstance
in evaluating the work of Yoo and Bybee, it cannot explain the conclu-
sions reached in the memoranda of Levin and Bradbury. And there is
82 Chapter Three
an additional irony in the fact that the same attorney who authored
the “Best Practices” memorandum for attorneys at OLC in May 2005
also authored, six days earlier, a memorandum upholding the use of
all of the interrogation techniques authorized by the Yoo and Bybee
memoranda.
Consider, for example, table 3.1, which compares the classified
August 2002 Bybee memorandum with the May 10, 2005, Bradbury
“Techniques” memorandum.
A close comparison of the two memoranda shows that the Brad-
bury “Techniques” memorandum is much more carefully argued. Just
as in the Levin memorandum that preceded it, and with which it is
said to be “fully consistent,” the Bradbury “Techniques” memoran-
dum abandons the analysis of “severe pain” found in the unclassified
Bybee memorandum and any discussion of the commander-in-chief
powers or any arguments based on possible defenses of necessity or
self-defense. Nevertheless, with regard to the question of whether the
CIA may use the EITs, it is entirely consonant with the classified Bybee
memorandum. “We conclude,” the memorandum reads, “that the sep-
arate authorized use of each of the specific techniques at issue, subject
to the limitations and safeguards described herein, would not violate
sections 2340-2340A.”33
A reader of this memorandum might be inclined to highlight the
language in the above conclusion that only the separate use of individ-
ual interrogation techniques is approved, for this point is in fact high-
lighted in a footnote in the memorandum itself. The footnote reads,
“The present memorandum addresses only the separate use of each
individual technique, not the combined use of techniques as part of an
integrated regimen of interrogation.”34 But as the footnote goes on to
point out, the CIA acknowledges that the “authorized techniques are
designed to be used with particular detainees in an interrelated or com-
bined manner as part of an overall interrogation program.” For that
reason, the memorandum indicates that a separate memorandum will
address the combined use of EITs.35
Given the comment in the footnote of the “Techniques” memoran-
dum, one might expect that the OLC was going to conclude that the
combined use of the EITs is prohibited. That is not the case. Whether
used individually or in combination, the EITs that I have listed in
table 3.1 are held not to violate sections 2340–2340A, and in fact the
May 2005 “Techniques” and “Combined Techniques” memoranda
Table 3.1 Comparison of OLC Memoranda
Classified Bybee
Interrogation Technique Memorandum Bradbury Memorandum
(Allowed?) (Allowed?)
Walling Yes Yes
Facial hold Yes Yes
Facial slap Yes Yes
Cramped confinement Yes Yes
Wall standing Yes Yes
Stress positions Yes Yes
Sleep deprivation Yes Yes
Insects placed in Yes Yes
confinement box
Waterboarding Yes Yes
Dietary manipulation — Yes
Nudity — Yes
Attention grasp — Yes
Abdominal slap — Yes
Water dousing — Yes
authorize five techniques not addressed in the classified Bybee memo-

randum. Yet, although Yoo and Bybee have been vilified, Bradbury, for
the most part, has not been. David Cole’s observations about the Brad-
bury memoranda strike me as correct. The conclusion reached in these
memoranda “is truly a remarkable conclusion—namely, that the CIA
could deprive a suspect of sleep for days on end, repeatedly slap him in
the stomach and face, force him into painful stress positions for hours
at a time, and waterboard him, without inflicting cruel, inhuman, de-
grading treatment.”36
Remarkable or not, the opinion that these combined interrogation
techniques did not constitute torture or cruel, inhuman, or degrading
treatment of detainees remained the position of the OLC until April
15, 2009, when the office withdrew both the “Techniques” and the
“Combined Techniques” memoranda.
Noninstitutional Responses
Thus far we have focused primarily on the institutional responses to the
interrogation memoranda issued by John Yoo and Jay Bybee. But David
Cole’s analysis of these memoranda is illustrative of the response of
84 Chapter Three
individual professionals to the work of attorneys to facilitate the war

on terror. It is worth looking at some other individual responses. Al-
though it took place within an institutional context, perhaps the most
striking individual response to the interrogation memoranda came
from Alberto Mora, the general counsel of the navy, during the time
that the memoranda were being operationalized.
Mora’s response to the memorandum that Yoo wrote for William
J. Haynes II, the general counsel at the DOD, on March 14, 2003, is
chronicled in a memorandum that Mora wrote to the inspector general
of the navy, Vice Admiral Albert Church, dated July 7, 2004.37 It is an
unusual document in part because it is clearly an effort to get on the
record the steps that the Office of the General Counsel of the navy
took in response to concerns about enhanced interrogations. It is also
unusually personal in that it documents what actions Mora himself
took. As Mora writes, the memorandum “is largely an account of my
personal actions or knowledge.”38
After explaining why the issue of detainee interrogation came to his
attention, even though the Office of the General Counsel of the navy
would not typically be involved in such matters, Mora documents the
concerns that were raised with him by the director of the Naval Crimi-
nal Investigative Services (NCIS) that some detainees at Guantánamo
Bay were being physically and emotionally abused. In late December
2002, Mora met with the director of NCIS, David Brant, and Michael
Gelles, the chief NCIS psychologist. Gelles described conditions at
Guantánamo Bay that violated US military interrogation guidelines
and expressed his concerns that the treatment of detainees was likely to
escalate to torture unless something was done.
Mora was disturbed by the reports of Brant and Gelles and immedi-
ately sought a clarification of official policy on interrogation. This led
him to contact Steven Morello, his counterpart at the Department of the
Army. Morello provided Mora with a number of documents, including
a legal brief by Lieutenant Colonel Diane Beaver that concluded that
the enhanced techniques complied with the law, and a memorandum
from Secretary of Defense Donald Rumsfeld authorizing some EITs.
Because he found the Beaver brief “a wholly inadequate analysis of the
law” and because the memorandum authorizing enhanced techniques
was based on this analysis, Mora sought a meeting with Haynes, the
general counsel of the DOD, to urge him to withdraw the Rumsfeld
memorandum. By mid-January 2003, Mora felt that no progress had

been made in reviewing or moving to rescind the interrogation policy,
and he drafted a memorandum laying out his serious objections to the
policy. Only when Mora told Haynes that he would sign off on this
memorandum, thus making it part of the documentary evidence about
the interrogation policy, did Haynes convince Secretary Rumsfeld to
suspend the use of the previously approved techniques.
In his “Statement for the Record,” as he captioned his memoran-
dum, Mora documents how Haynes and Rumsfeld then convened a
working group to review the DOD interrogation policy and how the
working group followed the advice set out in the Yoo memorandum
to Haynes, which contained the same analysis of the law contained in
the Bybee memoranda that we reviewed earlier in this chapter. Because
Mora anticipated the need for an alternative approach to interrogation
policy, he arranged for three memoranda to be drafted that set one out.
Yet Haynes and Rumsfeld appeared set on the Yoo analysis. Mora
writes:
It became evident to me and my OGC [Office of the General Counsel] col-
leagues that the Working Group report being assembled would contain
profound mistakes in its legal analysis, in large measure because of its re-
liance on the flawed OLC Memo. In addition, the speed of the Working
Group process and the division of responsibility among the various services
made it difficult to prepare detailed comments or objections to those sec-
tions not assigned to OGC. My intent at this stage was to review the final
draft report when it was circulated for clearance but, based on the unac-
ceptable legal analysis contained in the early draft versions that were likely
to be retained in the final version, I anticipated that I would non-concur
with detailed comments.39
Unfortunately, the final working group report was never circulated, at

least not to those who had criticized the reasoning of early drafts. Thus
Mora, who was a member of the working group, never saw the version
on which Secretary Rumsfeld signed off.
I have characterized Mora’s actions as noninstitutional partly be-
cause this is how Mora himself frames his “Statement for the Record”
memorandum and partly because his opposition to the interrogation
policy justified in the Yoo and Bybee memoranda is not rooted in in-
stitutional norms at the DOJ or the Department of the Navy. Instead,
86 Chapter Three
it is his personal and professional commitment to what he describes as

American values and the rule of law that led him to oppose the Yoo and
Bybee memoranda. In Mora’s view, the conclusions reached in these
memoranda violated the core commitments of his professional life.
What precisely, then, were his objections?
As we have seen, there were clearly process concerns documented
in the “Statement for the Record” memorandum. Neither the original
formulation of the policy nor the restatement of the policy under-
taken by the working group involved serious input from those who
questioned the policy. Military lawyers were cut out of the process of
deliberation and little consultation was sought. As we saw when we
considered the development of APA policy on interrogation, process
matters, and Mora certainly would not deny that. Nevertheless, Mora’s
central objections were not procedural.
There are parts of Mora’s analysis of the Yoo memorandum that
echo concerns set out in the OPR report and elsewhere. For example,
he raises concerns that the memorandum’s treatment of the Ireland
v. United Kingdom case was not adequate. It is true, Mora points out,
that the court said that the interrogation techniques in question in this
case—ones that are virtually the same as those authorized in the Yoo
and Bybee memoranda—did not rise to the level of torture. Neverthe-
less, the court found that these techniques constituted cruel, inhuman,
and degrading treatment, a fact that the Yoo and Bybee memoranda
did not seriously engage. Nor did the memoranda take seriously the
likelihood that the courts would reject the claim of Guantánamo’s spe-
cial jurisdictional status. As Mora puts it, “The coercive interrogations
in Guantánamo were not committed by rogue elements of the military
acting without authority, a situation that may support a finding of lack
of jurisdiction.” On the contrary, at Guantánamo “the authority and
direction to engage in the practice issued from and was under review
by the highest DOD authorities, including the Secretary of Defense.”
What, asks Mora, “precluded a federal district court from finding juris-
diction along the entire length of the chain of command”?40
More importantly, however, the Yoo memorandum provides almost
no sense of the legal and political significance of authorizing the tech-
niques in question. Even if one might find a narrow legal justification
for these EITs, one must consider the broader implications. Because the
mistreatment of detainees was “contrary to American values,” when
the abuse was made public, there would be “severe policy repercus-
sions.” Mora is emphatic about the likely reaction to the abusive prac-
tices: “The public and the military would both repudiate them; public
support for the War on Terror would diminish; [and] there would be
ensuing international condemnation.” The consequences, Mora con-
cludes, “were incalculable but certain to be severe.”41
The basic problem, Mora argues, is that even if one wanted to au-
thorize coercive interrogations, to do so would profoundly alter the re-
lationship between the law and the character of the military. The law
embodies fundamental values and helps to shape the character of mili-
tary men and women. Military training inculcates virtues and respect
for the rule of law and American values. To authorize the military to
conduct coercive interrogations is to undermine military training. Part
of that training, not to mention American foreign policy, has been sup-
port for human rights. Can we, Mora asks, continue to support human
rights while engaged in practices that we routinely condemn?
Notice that Mora has significantly broadened the range of consid-
erations to which we ought to attend in asking about the legality of
enhanced interrogations. In doing so, he draws attention to the fact
that professional responsibility involves more than staying within a pre-
scribed set of guidelines in the conduct of one’s labors. He is, in effect,
asking how a legal professional could defend an interpretation of the
law that appears profoundly at odds with the values the law is meant to
serve. This is obviously an important question, and we turn to it in the
next chapter.
Notes
1. Some critics of interrogation techniques used by the United States at Guan-
tánamo Bay treat the designation “torture memos” as descriptive of what the
memoranda authorized. That is, they refer to them as torture memos because
they authorized torture. But it is possible to refer to the memoranda as the torture
memos without implying a moral judgment, for the memoranda explored the is-
sue of what constitutes torture. I will typically refer to these memoranda as the
interrogation memoranda as a reminder that one fundamental question that the
memoranda sought to answer is what interrogation techniques could be consid-
ered torture under the controlling legal documents.
In particular, I will focus on two memoranda issued by Jay Bybee and a memo-
randum and letter issued by John Yoo. Yoo was the principal author of all four
88 Chapter Three
documents, and although these documents were written for different recipients
and slightly different purposes, they set out a consistent view that enhanced inter-
rogation is legal under both domestic and international law. The two Bybee mem-
oranda and the Yoo letter were dated August 1, 2002. The Yoo memorandum is
dated March 14, 2003. One of the Bybee memoranda is addressed to Alberto Gon-
zales, counsel to the president. This memorandum is conventionally referred to as
the unclassified Bybee memorandum. The other Bybee memorandum is addressed
to John Rizzo, acting general counsel of the CIA. This memorandum is usually
referred to as the classified Bybee memorandum.
2. Most of the declassified memoranda on the interrogation of detainees can
be found at an electronic Freedom of Information Act “reading room” established
by the DOJ at “OLC FOIA Reading Room,” last modified April 2012, www.justice
.gov/olc/olc-foia1.htm. The Levin memorandum is available here: Daniel Levin,
acting assistant attorney general, to the deputy attorney general, memorandum,
OLC, December 30, 2004, www.justice.gov/olc/18usc23402340a2.htm. Bradbury’s
memoranda can be found here: Steven G. Bradbury to John A. Rizzo, “Tech-
niques” memorandum, OLC, May 10, 2005, www.justice.gov/olc/docs/memo-
bradbury2005-3.pdf; Steven G. Bradbury to John A. Rizzo, “Combined Techniques”
memorandum, OLC, May 10, 2005, www.justice.gov/olc/docs/memo-brad
bury2005-2.pdf.
3. “About the Office,” OLC, last modified March 2012, www.justice.gov/olc/.
4. The history of OLC involvement with the interrogation memoranda is nar-
rated differently in different sources. Here I draw upon the account in the DOJ’s
review of the work of the OLC found in the OPR report “Investigation into the
Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central
Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected
Terrorists,” July 29, 2009, available on the US House of Representatives Committee
on the Judiciary website, http://judiciary.house.gov/hearings/pdf/OPRFinalRe
port090729.pdf (hereafter, OPR report).
5. John Yoo to Alberto R. Gonzales, OLC, August 1, 2002, www.justice.gov/
olc/docs/memo-gonzales-aug1.pdf.
6. Jay S. Bybee to Alberto R. Gonzales, memorandum, OLC, August 1, 2002,
www.justice.gov/olc/docs/memo-gonzales-aug2002.pdf.
7. The letter is summarized in Jim Lobe, “130 Jurists Condemn White House
Torture Memos,” Antiwar.com, August 7, 2004, www.antiwar.com/lobe/?articleid
=3261.
8. “Report to the House of Delegates” (resolution condemning torture),
ABA, August 9, 2004, www.abanow.org/2004/08/aba-house-of-delegates-torture
-resolution-2004/.
9. Ibid., 1–2.
10. There is considerable irony in the fact that Harold Koh went on to be-
come legal adviser to the State Department and a staunch defender of the Obama
administration’s targeted killing policy. The fact that a secret OLC memorandum
provides the legal authorization for targeted killing appears not to have deterred
Koh from defending the policy. See “Interview with Harold Koh, Obama’s De-
fender of Drone Strikes,” Daily Beast, April 8, 2012, www.thedailybeast.com/ar-
ticles/2012/04/08/interview-with-harold-koh-obama-s-defender-of-drone-strikes
.html.
11. OPR report, 2–4.
12. David Margolis, associate deputy attorney general, to the attorney general,
memorandum, January 5, 2010, available on the US House of Representatives
Committee on the Judiciary website, http://judiciary.house.gov/hearings/pdf/
DAGMargolisMemo100105.pdf.
13. OPR report, 13.
14. Ibid., 11.
15. “Analytical Framework,” OPR, accessed May 22, 2012, www.justice.gov/
opr/framework.pdf, 1–2.
16. OPR report, 160.
17. Bybee to Gonzales, pt. 1, sec. B, 5–6.
18. Strawson, Bounds of Sense, 28.
19. OPR report, 178.
20. Ibid., 16, quoting from “Principles to Guide the Office of Legal Counsel,”
OLC, December 21, 2004, www.acslaw.org/files/2004%20programs_OLC%20
principles_white%20paper.pdf, 5.
21. “Principles to Guide the Office of Legal Counsel,” 1.
22. “Rules of Professional Conduct,” DC Bar Association, accessed May 22, 2012,
www.dcbar.org/for_lawyers/ethics/legal_ethics/rules_of_professional_conduct/
amended_rules/.
23. It is important to note in this regard that the OLC memoranda that replaced
the Yoo and Bybee memoranda did not repudiate the conclusion that the CIA could
use all of the EITs it requested. They did, however, repudiate the questionable legal
reasoning deployed by Yoo and Bybee. The OPR discussed the Levin and Bradbury
memoranda, but did not conclude that Levin or Bradbury committed professional
misconduct. I will return to this point later in this chapter.
24. Margolis to the attorney general, 5.
25. Ibid., 6.
26. Ibid., 8.
27. Ibid., 25–26.
28. Ibid., 67–68.
29. In fairness to the OPR, it should be noted that this document itself claims
that the principles it sets forth “are based in large part on the longstanding practices
of the Attorney General and the Office of Legal Counsel, across time and admin-
istrations.” To the degree that the principles were in fact widely accepted within
the OLC before the promulgation of this document, it was not unreasonable of
90 Chapter Three
the OPR to assess Yoo and Bybee in relation to these principles. See “Principles to
Guide the Office of Legal Counsel,” 1.
30. Steven G. Bradbury to “Attorneys of the Office,” memorandum, Office of
the Principal Deputy Assistant Attorney General, May 16, 2005, available at the
Federation of American Scientists website, www.fas.org/irp/agency/doj/olc/best
-practices.pdf.
31. Quoted in Cole, “Sacrificial Yoo,” 455.
32. Ibid., 458.
33. Bradbury to Rizzo, “Techniques” memorandum, 3.
34. Ibid., 5.
35. It is important to note that the “Techniques” and “Combined Techniques”
memoranda were issued on the same day with nearly identical subject lines: “Ap-
plication of 18 U.S.C. Sections 2340–2340A to Certain Techniques That May Be
Used in the Interrogation of a High Value al Qaeda Detainee” and “Application of
18 U.S.C. Sections 2340–2340A to the Combined Use of Certain Techniques in the
Interrogation of High Value al Qaeda Detainees.”
36. Cole, “Sacrificial Yoo,” 459.
tice.org/files/Mora%20memo.pdf. Jane Mayer’s account of Mora’s role in oppos-
ing coercive interrogation should be required reading in courses on professional
responsibility; see her essay “The Memo,” New Yorker, February 27, 2006, www
.newyorker.com/archive/2006/02/27/060227fa_fact. The Yoo memorandum to
which Mora responds is consistent with both Bybee memoranda and the letter
Yoo wrote to Alberto Gonzales on enhanced interrogation. John Yoo to William
Haynes, memorandum, OLC, March 14, 2003, www.justice.gov/olc/docs/memo
-combatantsoutsideunitedstates.pdf.
38. Mora to inspector general, 1.
39. Mora to inspector general, 18. In a footnote in this passage (n. 12), Mora
notes, “The DON [Department of the Navy] legal leadership was united in its view
that the OLC Memo was rife with mistaken legal analysis. . . . For that matter, the
senior leadership among DON civilian and military attorneys shared a common
view of virtually all the legal and policy issues throughout the debate on detainee
interrogation.”
40. Ibid., 12.
41. Ibid., 10.
Four
Ticking Bombs and Dirty Hands

Coercive Interrogation and the
Rule of Law
Coerced confessions offend the community’s sense of fair play and

decency. So here [in this case], to sanction the brutal conduct which
naturally enough was condemned by the court whose judgment is
before us, would be to afford brutality the cloak of law.
—Rochin v. California, 342 U.S. 165, 172 (1952)
Among legal academics, a near consensus has emerged: coercive

interrogations must be kept “illegal,” but nonetheless permitted in
certain circumstances.
—Eric A. Posner and Adrian Vermeule, “Should
Coercive Interrogation Be Legal?” 673
One of the striking claims Alberto Mora makes in his “Statement for
the Record” memorandum is that, while he is uncertain about the mo-
rality of torture in a “ticking bomb” case, he can imagine a scenario in
which he might be prepared to torture a suspected terrorist. In such a
case, he says, he would apply the torture himself, but “with full knowl-
edge of potentially severe personal consequences.”1 Even in that case,
however, he argues that the laws and values of the nation should not be
changed to render torture lawful.
Discussions of the ticking bomb scenario have been pervasive in de-
bates about coercive interrogations, and for that reason, we will need
to take up the arguments around this scenario.2 Before we turn to the
ticking bomb, however, it is important to note that the arguments
about whether torture should be legal if it might prevent a horrific ter-
rorist attack are not merely framed as matters of law. As Mora makes
92 Chapter Four
clear, the values for which the law stands and to which legal profes-
sionals must be committed are implicated in the debate. Professional
responsibility thus requires engaging the larger questions of values that
are at stake in the debate about coercive interrogation. Just as we must
assess the argument that Yoo and Bybee failed to provide thorough,
objective, and candid advice, we must assess the claim that legal profes-
sionals cannot embrace a practice that is contrary to the rule of law.
Eric Posner and Adrian Vermeule, quoted in an epigraph above, are
probably right that most legal academics have defended the view that
torture must remain illegal, but not all have. Perhaps the best-known
arguments for legalizing torture have come from Alan Dershowitz, and
his arguments merit serious consideration.3 What is particularly inter-
esting about Dershowitz’s position for our purposes is that he defends
his view by appealing to democratic values. He would disagree with
Mora that legalizing torture compromises core democratic values; on
the contrary, according to Dershowitz, authorizing torture in rare cases
is the best way of preserving those values.
The Ticking Bomb Scenario

Dershowitz’s proposal is born from what he believes to be a tough-
minded and realistic assessment: if the United States and other demo-
cratic countries can prevent terrorist attacks on innocent civilians by
torturing known terrorists, they will. If that assessment is correct, Der-
showitz argues, then we need to ask ourselves whether it would be bet-
ter to torture in secret or openly within a system that demands and
provides accountability. According to Dershowitz, a scenario in which
a known and uncooperative terrorist has information about a tick-
ing bomb that is set to explode imminently—and that is likely to kill
many innocent civilians—pits at least three democratic values against
one another in a way that leads to tragic choice. The first value is the
safety and security of a country’s citizens; the second value is a com-
mitment to human rights; the third value is democratic openness and
accountability.4
In the face of this tragic choice, Dershowitz’s position is unwaver-
ing: we must preserve the first and third values. While violations of hu-
man rights should be minimized, they are not prohibited. Indeed, the
state must explicitly and openly permit the use of torture to safeguard
Ticking Bombs and Dirty Hands 93
the lives of its citizens. Nor does he flinch at recommending types of

torture. Here is the specific scenario Dershowitz sketches, along with
his advice for what should be done.
Suppose that the FBI had actually searched the computer of Zac-
arias Moussaoui in the weeks before September 11, 2001, and found
that there was a plan to destroy a number of occupied buildings in the
coming weeks.5 Further, let us also suppose that Moussaoui was inter-
rogated, offered immunity from prosecution, and even injected with
truth serum; still, no additional information about the planned terror-
ist attacks was forthcoming.6 Dershowitz believes that in such circum-
stances most Americans would repudiate an absolutist commitment to
human rights in favor of protecting innocent civilians. In such a case,
if the FBI proposed inserting a sterilized needle under Moussaoui’s fin-
gernails to produce unbearable but nonlethal pain—or, similarly, if they
proposed drilling through an unanesthetized tooth to get Moussaoui to
talk—Dershowitz believes that it would be hard to argue against doing
so. In his own words, “Pain is a lesser and more remediable harm than
death; and the lives of a thousand innocent people should be valued
more than the bodily integrity of one guilty person.”7
Given this reasoning, the only remaining question is whether the
torture should be done secretly, in violation of existing laws, or whether
the laws should be changed to permit legal torture after a torture war-
rant had been granted by the proper authorities. Again, Dershowitz’s
stance is clear: no democracy should allow its leaders to undertake
actions that are illegal. If we believe torture is necessary, we should
change our laws to accommodate the practice. To be sure, this is a dif-
ficult—even tragic—choice: “If we do not torture, we compromise the
security and safety of our citizens. If we tolerate torture but keep it
off the books and below the radar screen, we compromise principles
of democratic accountability. If we create a legal structure for limit-
ing and controlling torture, we compromise our principled opposition
to torture in all circumstances and create a potentially dangerous and
expandable situation.”8 This last choice is unwelcome, but Dershowitz
nonetheless believes that it is the one we should make.
By contrast, consider Michael Walzer’s account of the relation of
torture and law, a view that is close to the one that Alberto Mora appar-
ently holds.9 Walzer joins Dershowitz in his concern about political lead-
ers who must make hard decisions to do evil so that good may come.
94 Chapter Four
Indeed, one of Walzer’s examples is essentially equivalent to Dershow-

itz’s ticking bomb scenario. Imagine, says Walzer, a recently elected
political leader whose country is embroiled in a prolonged colonial war
that he opposes; moreover, the leader campaigned on a platform of
decolonization and is genuinely committed to seeking peace. Unfortu-
nately, one of the first decisions that he confronts is whether to autho-
rize the torture of a rebel leader who apparently knows the location of
a number of bombs set to explode within the next twenty-four hours.
The political leader in Walzer’s case believes “that torture is wrong,
indeed abominable, not just sometimes, but always.”10 Nevertheless, he
orders the man tortured in the hope that he can save the lives of those
who might otherwise die if the bombs go off. Having set up his ex-
ample, Walzer invites his readers to consider a question that may help
us decide between the contrasting positions of Dershowitz and Mora:
How should the leader who has ordered the torture view his action?
How should he regard himself morally and legally?
The Problem of Dirty Hands

One possible answer to the question of how a torturer should regard
himself morally and legally is that he should deny that any wrong has
been done. Such a leader might, for example, think of his decision as
difficult—indeed, extremely difficult—but nevertheless view it as the
right decision. Such a leader might feel burdened by having had to
make the hard choice, but he would not feel guilty about having done
something wrong. Walzer argues that this is the utilitarian response to
the ticking bomb scenario: the leader may need to overcome his moral
inhibitions about ordering torture in such a case, but he should not
feel guilty since—on this view—he has done nothing wrong; because
torturing the terrorist may save many innocent lives, it is the right thing
to do. In John P. Reeder Jr.’s terminology, this is a “righteous torturer”
who overrides the prohibition against torture because he believes that
“torture is morally justified overall.”11
The obvious problem with this answer is that it effectively eliminates
what philosophers refer to as the problem of dirty hands; namely, the
dilemma created when correct political action may require violating
fundamental moral norms. If the leader believes he has simply weighed
the alternatives and calculated that the consequences of torturing are

better than those of not torturing, then he has not committed a crime.
Rather, he has merely done what he ought to have done—as distasteful
as that is. According to Walzer, the problem with this way of under-
standing the situation is that it is strikingly at odds with how we tend
to think about the moral life. It is certainly at odds with the conception
of law that Mora appears to hold. If we genuinely believe that ordering
torture is the right thing to do in a particular case, we are just as likely
to offer reasons to excuse the action as we are to justify it: “When rules
are overridden we do not talk or act as if they had been set aside, can-
celed, or annulled. They still stand and have this much effect at least:
that we know we have done something wrong even if what we have
done was also the best thing to do on the whole in the circumstance.”12
For Walzer, then, it is clear that the leader who orders torture must un-
derstand that what he has done is a crime and accept the moral burden
of having committed a crime. This presumably is what Mora meant
when he spoke of “potentially severe personal consequences.”
By contrast, Dershowitz’s proposal would effectively eliminate any
consequences for the torturer or those who order torture, so long as
the torture is judicially approved. This does not, of course, mean that
the person who conducts torture under an appropriate warrant will not
feel bad about either torturing or authorizing the torture. The same
holds for the judge who issues the warrant. Both may be troubled by
what they have done. Nevertheless, as Walzer points out, it does not
seem substantial enough simply to say that someone who tortures
should feel bad. It is interesting that, in making this point, Walzer cites
the position of Saint Augustine, who believed that, although killing in
a just war was not wrong, a soldier might still be saddened by having
to kill in such a war since killing remains a terrible thing to have to do.
Dershowitz’s torturer might very well feel sad even if torture is not a
crime; however, on this view, he should not feel guilty.
The question at this point is whether we should follow Dershowitz
in thinking that torture should be rare but legal or Walzer (and Mora)
in believing that torture is always a crime, even if it may occasionally
be required of a good leader. I side with Walzer in this debate, and it
is important to understand why regret on the part of the leader who
authorizes torture is not enough. Walzer’s explanation is compelling:
96 Chapter Four
Surely we have a right to expect more than melancholy from him now.
When he [the duly elected political leader] ordered the prisoner tortured,
he committed a moral crime and he accepted a moral burden. Now he is a
guilty man. His willingness to acknowledge and bear (and perhaps to repent
and do penance for) his guilt is evidence, and it is the only evidence he can
offer us, both that he is not too good for politics and that he is good enough.
Here is the moral politician: it is by his dirty hands that we know him. If
he were a moral man and nothing else, his hands would not be dirty; if he
were a politician and nothing else, he would pretend that they were clean.13
In reaching the conclusion that the political leader who orders a pris-
oner tortured should acknowledge and bear his guilt for committing
a crime, Walzer draws upon Albert Camus’s play The Just Assassins.
In deciding whether to side with Walzer or Dershowitz, Camus is
instructive.14
Camus’s play is a dramatization of the assassination of Grand Duke
Sergei Alexandrovich of Russia in 1905. Although Camus says that he
tried to achieve dramatic tension in the work by creating characters
of equal strength who disagree about the role of assassination in the
pursuit of a more just social order, he also makes it clear that he ulti-
mately sides with the assassins—that is, those in the play who are at-
tempting to overthrow the despotic government of tsarist Russia. “My
admiration for my heroes, Kaliayev and Dora,” Camus writes, “is com-
plete” (x). Nevertheless, it is also clear that Camus admires Kaliayev
and Dora precisely because they are willing to accept responsibility for
their actions—even to the point of preferring to be executed rather
than pardoned.
Walzer acknowledges that Camus’s position is extreme, but he in-
sists that the logic of this view is sensible. If political leaders choose to
do evil to protect the innocent, they must simultaneously be prepared
to accept what Mora referred to as the “potentially severe personal con-
sequences” of the evil they do. In this way, torturing terrorists to defuse
a ticking bomb is like an act of civil disobedience. In both cases, Walzer
writes, political actors “violate a set of rules, go beyond a moral or le-
gal limit, in order to do what they believe they should do. At the same
time, they acknowledge their responsibility for the violation by accept-
ing punishment or doing penance.”15
This is the very position of Ivan Kaliayev in The Just Assassins. Al-
though Kaliayev is prepared to—and does—assassinate the grand duke,
he does not undertake this action lightly: he recognizes that, in throw-
ing the bomb that kills Sergei, he becomes a criminal. “When we kill,”
Kaliayev says, “we’re killing so as to build up a world in which there
will be no more killing. We consent to being criminals so that at last
the innocent, and only they, will inherit the earth” (245). Indeed, when
Sergei’s widow, the grand duchess, visits Kaliayev in prison and offers
to have him pardoned, he refuses. Their exchange is instructive:
the grand duchess. Won’t you join with me in prayer and repent?
Then we should be less lonely.
kaliayev. Let me prepare myself to die. If I did not die—it’s then I’d
be a murderer. (288)
In the end, Kaliayev rejects the pardon because he believes that accept-
ing death as punishment for his crime is the only thing that prevents
him from being simply a murderer. Yes, he has killed a man. However,
he has done so in the pursuit of a just cause, and he is willing to sac-
rifice his life in recognition of the fact that doing so is the only way to
atone for his crime. It is precisely Kaliayev’s acceptance of responsibil-
ity for his crime that Walzer describes as Camus’s sensible but exagger-
ated view that a torturer or assassin must accept death if his actions
are going to be expiated. According to Walzer, the reason this view is
sensible is that it sets the stakes of violating the rules against torture or
assassination very high and thus ensures that we properly value these
prohibitions.
Although Walzer focuses primarily on Kaliayev’s willingness to
accept death as support for his position that the rules against torture
should not be relaxed, there are many other aspects of the play that
also support this position. It is significant, for example, that both Dora
and Kaliayev insist on imposing limits on what they are prepared to do
in pursuit of the overthrow of the government. Thus, when Kaliayev
first goes out to bomb the grand duke’s carriage, he fails in his mission
because Sergei’s niece and nephew are in the carriage with Sergei and
Kaliayev cannot bring himself to kill these innocent children. A heated
debate then ensues among the revolutionaries who have plotted the
98 Chapter Four
assassination about whether or not Kaliayev should have hesitated as

he did:
dora. Open your eyes, Stepan, and try to realize that the group
would lose all its driving force, were it to tolerate, even for a mo-
ment, the idea of children being blown to pieces by our bombs.
stepan. Sorry, but I don’t suffer from a tender heart; that sort of non-
sense cuts no ice with me. . . . Not until the day comes when we
stop sentimentalizing about children will the revolution triumph,
and we be masters of the world.
dora. When that day comes, the revolution will be loathed by the
whole human race. (256)
A little further on:
dora. Yanek’s ready to kill the Grand Duke because his death may
help to bring nearer the time when Russian children will no lon-
ger die of hunger. That in itself is none too easy for him. But the
death of the Grand Duke’s niece and nephew won’t prevent any
child from dying of hunger. Even in destruction there’s a right
way and a wrong way—and there are limits.
stepan, vehemently. There are no limits! . . . 
kaliayev. Stepan, I am ashamed of myself—yet I cannot let you con-
tinue. I am ready to shed blood, so as to overthrow the present
despotism. But, behind your words, I see the threat of another
despotism which, if ever it comes into power, will make of me a
murderer—and what I want to be is a doer of justice, not a man
of blood. (258–59)
As this exchange indicates, Camus’s heroes, Dora and Kaliayev, are not
prepared to accept the proposition that anything goes. Indeed, with
the exception of Stepan, Camus has all of the revolutionaries struggle
mightily with the prospect of killing the grand duke. Although they try
in various ways to distance themselves emotionally from what they are
about to do, they never manage to achieve the detached commitment
to the killing that characterizes Stepan. In fact, one of the characters,
Voinov, realizes that he cannot go through with the assassination. It is
one thing to plan to kill a man, he tells the group’s leader, Annenkov;
however, “it’s a very different matter going down into the street when
night is falling on the city, taking your stand among the crowds of peo-
ple hurrying home to their evening meal, their children, the wife who’s
watching on the doorstep—and having to stand there, grim and silent,
with the weight of the bomb tugging at your arm—and knowing that
in three minutes, in two minutes, in a few seconds, you will dash out to-
ward a carriage, bomb in hand” (265–66). Significantly, Annenkov tells
his compatriots that the decision that Voinov will not throw the bomb
was not Voinov’s but his own; further, Annenkov defends Voinov in the
face of Stepan’s accusation that Voinov has lost his nerve.
Although Walzer focuses on the characters of Dora and Kaliayev
to support his position that the prohibition against torture should not
be loosened, it is actually the character of Stepan who may provide
the most significant insight on this matter. As we have seen, Stepan is
fanatically committed to assassinating the grand duke. He would not
have hesitated in throwing the bomb, even if it meant killing the grand
duke’s wife or his niece and nephew. In fact, Stepan is the only char-
acter in the play that seems to lack a kind of basic humanity. He says
at one point, “I do not love life; I love something higher—and that is
justice” (244). Yet his single-minded commitment to killing the grand
duke seems to be born not from a love of justice, but rather from ha-
tred—a hatred that has clearly overtaken his life.
It is thus worth noting that Stepan’s hatred seems to have grown
from his experience of being tortured while in a tsarist prison. When
Kaliayev insists that the only justification for the assassination is that
it is being done for the good of the Russian people, Stepan responds
fiercely: “Don’t prate of justification! I got all the justification I need
three years ago, one night in the convict prison” (ibid.). Not only does
Camus display the repugnant self-righteousness of someone for whom
everything is permitted in the pursuit of an apparently just cause, but
additionally, he suggests that it was legally sanctioned torture that cre-
ated such a fierce and misshapen personality.
This hint about the relationship between law and character is sug-
gestive. Law can shape or deform character. Ideally, respect for the rule
of law promotes character formation that serves democratic values, but
not always. The idea that the rule of law is incompatible with certain
democratic dispositions, emotions, and character traits is a theme that
appears in various critiques of torture. Consider, for example, Jeremy
100 Chapter Four
Waldron’s arguments against legalizing interrogational torture.16 Wal-

dron develops his position partly in response to Dershowitz, and one
reason Waldron’s analysis of Dershowitz’s proposal is so compelling is
that he places the plan in the context of other legal responses to the war
on terror rather than treating it as an isolated legal initiative. For Wal-
dron, it is important to see Dershowitz’s response to the prospect of
torturing detainees as similar to those made by John Yoo and Jay Bybee.
Although Dershowitz’s plan would sanction far fewer instances of le-
gitimate torture than did Yoo’s or Bybee’s, the important point remains
that it provides legal sanction to any at all. According to Waldron, the
real problem is that torture is repugnant to the spirit of American law.
Furthermore, there is an important link or nexus between the prohibi-
tion of torture and the rule of law, which, if severed, threatens the very
rule of law itself. In different but related ways, all three theorists—Yoo,
Bybee, and Dershowitz—rend the fabric of American law by severing
this crucial connection.17
In arguing for this conclusion, Waldron highlights the various ways
all three legal theorists basically ignore the normative background that
informs prohibitions of torture. That background is best understood
as a “felt and well-established sense that certain abuses are beyond the
pale, whether one is dealing with criminal suspects, political dissidents,
or military detainees, and [that] they remain beyond the pale even in
emergency situations or situations of armed conflict.”18 On Waldron’s
view, something like this fundamental conviction informs every legal
instrument, both domestic and international, that seeks to outlaw
torture.
That said, lawyers who have defended the use of torture or its
equivalent have treated antitorture law on the legal model of malum
prohibitum rather than malum in se. In other words, laws against torture
have been construed as limiting actions that would be permitted in the
absence of specific antitorture laws. By contrast, if the normative back-
ground to antitorture statutes and conventions were taken seriously,
we would then recognize that torture is malum in se—that is, wrong
regardless of whether positive law prohibits it or not.
The significance of not taking seriously the normative commit-
ments that stand in the background of human rights law—and thus of
construing torture as merely malum prohibitum—is that particular ac-
tions undertaken to gain “actionable intelligence” from detainees are
presumed to be acceptable unless they can be shown to be ruled out
by a relevant statute or convention. After all, this is why Yoo and By-
bee insisted that the Geneva conventions do not apply to al Qaeda and
Taliban detainees; similarly, this explains why the interrogation memo-
randa sought to define torture so narrowly. By contrast, Dershowitz is
not nearly as willing as Yoo or Bybee to ignore the background beliefs
that inform legal prohibitions of torture. Nevertheless, his insistence
that democratic governments will torture in the face of terrorist threats
leads him to the same place. Waldron frames the issue as follows: Since
they want “to turn the existing vague standard into an operationalized
rule,” all three theorists seek a kind of precision in defining torture by
clarifying who can be tortured and specifying how severe the torture
can be.19
Waldron makes a second argument against legitimating torture;
namely, that torture is inherently at odds with our legal system. In de-
veloping this argument, Waldron articulates and defends the concept
of legal archetypes. According to Waldron, a legal archetype is a rule or
positive law that transcends an individual law or statute in that it cap-
tures the spirit of an area of law. As Waldron puts it, an archetype “ex-
presses or epitomizes the spirit of a whole structural area of doctrine
and does so vividly, effectively, and publicly, establishing the significance
of that area for the entire legal enterprise”; for example, habeas corpus
statutes serve as legal archetypes because they express our laws’ pro-
found respect for an individual’s freedom from physical confinement.20
In the case of rules against torture, the archetype is “expressive of an
important underlying policy of the law, which we might try to capture
in the following way: Law is not brutal in its operation. Law is not sav-
age. Law does not rule through abject fear and terror, or by breaking
the will of those whom it confronts.” To be sure, law is coercive. How-
ever, the prohibition against torture is emblematic of a commitment
not to coerce by dehumanizing those against whom the force of law
must be brought. As Waldron states, there is “an enduring connection
between the spirit of law and respect for human dignity” that is severed
when torture is legalized. While force and coercion are intrinsic to the
nature of law, a prohibition against torture symbolizes the recognition
that law should not compel compliance by reducing human beings to
“a quivering mass of ‘bestial, desperate terror.’”21
Waldron’s argument at this point is strikingly similar to those made
by David Luban in a series of essays in which he argues that torture is
incompatible with values embedded in our legal system. Luban begins
102 Chapter Four
his argument by noting that, at least on first inspection, torture appears

especially abhorrent to those who believe in limited government and
the importance of human dignity and individual rights—that is, to lib-
erals broadly construed.22 This is notable in itself because liberals are
not equally horrified by the death, maiming, and suffering caused by
war. Why, then, does torture appear to strike at the core of American
values, when the death and destruction of war does not?
The answer, says Luban, “lies in the relationship between torturer
and victim.” He continues: “The self-conscious aim of torture is to
turn its victim into someone who is isolated, overwhelmed, terrorized,
and humiliated. Torture aims to strip away from its victim all the quali-
ties of human dignity that liberalism prizes.”23 Torture is thus a kind
of tyranny, and tyranny is incompatible with a political system that
makes human dignity central. That is why none of the political ends
that torture has traditionally served can be defended given a commit-
ment to a liberal polity. The infliction of torture in order to terrorize,
extract confessions, punish, or relish in victory involves a repudiation
of a liberal commitment to human dignity. The only possible exception
to the condemnation within liberalism of the political use of torture,
says Luban, is its use to prevent future harm. This is why Dershowitz’s
ticking bomb scenario gains traction. Unlike other forms of torture,
interrogational torture alone appears to bear no essential connection
with tyranny.24
Luban’s analysis here helps us to see that, in one important respect,
Dershowitz’s argument is very close to Walzer’s. Dershowitz’s argu-
ment has found supporters because it breaks the nexus between torture
and tyranny. Intelligence gathering to prevent a catastrophe is not a ty-
rannical use of power, even if torture is involved, so long as a court has
approved the torture. Walzer, of course, arrives at the same place via a
different route. The leader who orders a suspected terrorist tortured is
not acting tyrannically, because he is not above the law. He breaks the
law and is willing to accept the consequences of so doing.
While Dershowitz and Walzer may thus agree that interrogational
torture is not (necessarily) tyrannical, they differ in that Walzer ac-
knowledges the dark reality of torture in a way that Dershowitz does
not. The problem with the ticking bomb scenario is that it fosters a
profound self-deception about the nature of torture. By presenting tor-
ture in “a highly stylized and artificial way,”25 ticking bomb scenarios
obscure the link between torture and the violation of human dignity
and lead us to think that torture can be restricted to isolated and excep-
tional cases. Henry Shue has provided an argument for why the case
for exceptional cases of torture is deeply flawed.26 According to Shue,
torture confronts us with an either/or choice. We can either defend
torture by arguing that interrogational torture will provide us with the
kind of counterintelligence we need to prevent catastrophic attacks, in
which case we need a practice of torture that is effective, or we can de-
fend an absolute ban on torture. “The moderate position on torture,”
Shue writes, “is an impractical abstraction—it is torture in dreamland.”
This either/or is compelled by another one. “Either ‘torturers’ are just
thugs who have no clue what they are doing, in which case we need
not allow for exceptional cases in which they rapidly and effectively ex-
tract invaluable catastrophe-preventing information, or some can have
genuine expertise.”27 The problem, of course, is that in order to have
expertise, in order to be proficient in extracting information through
torture, one would have to torture regularly. In the case of torture, as
with other activities, practice makes perfect. In short, the logic of inter-
rogational torture precludes the exceptional case.
Luban makes a similar point when he writes that torture cannot be
an improvisational act. “The real world,” he says, “is a world of poli-
cies, guidelines and directives. It is a world of practices, not of ad hoc
emergency measures.”28 Putting the point this way helps us to see why
legalizing torture tears at the moral fabric of society. We cannot justify
even the exceptional case of torture without also justifying a torture
culture. If we accept torture, we will need torture experts, new instru-
ments of torture, torture research, and a pedagogy of torture. It is just
not possible to quarantine torture in the way that advocates for the ex-
ceptional use of torture require.
We see this vividly in the adoption of EITs at Guantánamo Bay
and elsewhere. Because the techniques used by the CIA and military
interrogators were not considered legal before the OLC issued the in-
terrogation memoranda, there was effectively no knowledge base for
deploying these techniques successfully. The government thus turned
to the closest experience it had with torture; namely, the training that
US military personnel receive in survival skills that should be used if
they are captured and interrogated. Known as survival, evasion, resis-
tance, escape (SERE) training, this structured course was designed in
104 Chapter Four
part based on the experience of former prisoners of war who had been
captured, interrogated, and tortured.
Although for a time there was some dispute about whether SERE
training was reverse engineered to provide a template for US interro-
gation of detainees, there is no longer any doubt about this fact. As
the 2005 “Techniques” memorandum from the OLC makes clear, the
techniques about which the CIA wanted clarification “have all been
imported from military Survival, Evasion, Resistance, Escape (‘SERE’)
training, where they have been used for years on U.S. military Person-
nel.”29 To see the significance of this fact for our purposes, we need
to note several important aspects of the use of SERE training. First,
SERE courses include training in how to resist harsh and abusive inter-
rogations. Coercive interrogations are thus simulated, and training to
resist interrogation has included the use of waterboarding to see how
soldiers responded to this interrogation technique. Second, research
has been conducted on SERE soldiers who consented to being moni-
tored as they went through the training course. There is thus a body
of published scientific knowledge on which those designing enhanced
interrogation methods in the war on terror could draw.30 Third, profes-
sionals in the fields of both psychology and law did in fact draw on this
research in justifying and undertaking a regime of abusive interroga-
tion in Guantánamo Bay and elsewhere.
I will return to the third point shortly, but note that the use of the
experience with SERE training is exactly what would be predicted by
Luban’s (and Shue’s) argument that torture is not a one-off activity. If
we do not know what we are doing when we use coercive interroga-
tions then we are simply engaged in thuglike activity. But the only way
we can know what is effective and what is not is to engage in and to
practice abusive interrogation. It should thus come as no surprise that
once coercive interrogations were authorized, a whole apparatus of re-
search and instruction on using EITs followed.
This is precisely what Physicians for Human Rights (PHR) docu-
ments in its June 2010 white paper titled Experiments in Torture: Evidence
of Human Subject Research and Experimentation in the “Enhanced” Interro-
gation Program. Specifically, PHR cites documentary evidence that dem-
onstrates at least three instances of experimentation. The white paper
summarizes the experiments as follows:
1. Medical personnel were required to monitor all waterboarding practices

and collect detailed medical information that was used to design, de-
velop, and deploy subsequent waterboarding procedures;
2. Information on the effects of simultaneous versus sequential application
of the abusive interrogation techniques on detainees was collected and
used to establish the policy for using tactics in combination. These data
were gathered through an assessment of the presumed “susceptibility”
of the subjects to severe pain;
3. Information collected by health professionals on the effects of sleep dep-
rivation on detainees was used to establish EIP [Enhanced Interrogation
Program] sleep deprivation policy.31
It is notable that the evidence for experimentation in relation to

waterboarding consists in part of how the procedures for waterboard-
ing were changed from its original use, which followed the techniques
used in SERE training, to subsequent applications of the technique that
drew upon what was learned from medical monitoring of the process.
For example, water was typically used in SERE training, where trainees
were waterboarded only once. When the waterboard technique was
used repeatedly, the medical monitoring revealed that detainees were
susceptible to contracting pneumonia or suffering from extremely low
sodium levels, or both. Saline solution was thus substituted for water.
In addition, PHR documents that the systematic medical monitoring
of this EIT resulted in multiple improvements, so to speak, over the use
of waterboarding in SERE training. These include the use of a specially
designed gurney to move a detainee to an upright position quickly and
of a blood oximeter to measure a detainee’s vital signs and the admin-
istration of a liquid diet that lowers the risk of choking if a detainee
vomits during the interrogation.
Similarly, the collection of observational data involving the compari-
son of individual use of techniques with their combined use and the
effects of various lengths of sleep deprivation on detainees was used in
calibrating the application of EITs for maximum effect without violat-
ing OLC guidelines. This last point is especially important.
As we saw in chapter 3, the original interrogation memoranda de-
fined torture in relation to severe pain, and they cited the SERE studies
to suggest that the use of EITs did not rise to the level of severe pain.
106 Chapter Four
As SERE techniques were adapted and applied in ongoing interroga-

tions, CIA medical monitoring and OLC legal decisions became ever
more intertwined. Thus, although by 2005 the original interrogation
memoranda had all been withdrawn, the Bradbury memoranda that
replaced them explicitly cited the evolving use of EITs to justify their
continued legality.
Indeed, a good part of the case that PHR makes in claiming that
the CIA has conducted unethical and illegal human-subjects research
comes from the “Techniques” and “Combined Techniques” memo-
randa issued by Bradbury in May 2005. For example, both the use of
a combination of EITs and the use of sleep deprivation with detainees
are upheld on the basis of the medical monitoring of interrogations
that the CIA had undertaken through its Office of Medical Services
(OMS). It is worth quoting the “Combined Techniques” memoran-
dum at length. Discussing the possibility that EITs used in combination
might result in greater susceptibility to severe pain than when used in-
dividually, Bradbury writes:
We recognize the theoretical possibility that the use of one or more tech-
niques would make a detainee more susceptible to severe pain or that the
techniques, in combination, would operate differently from the way they
would individually and thus cause severe pain. But as we understand the
experience involving the combination of various techniques, the OMS
medical and psychological personnel have not observed any such increase
in susceptibility. Other than the waterboard, the specific techniques under
consideration in this memorandum—including sleep deprivation—have
been applied to more than 25 detainees. See [redacted] Fax at 1-3. No ap-
parent increase in susceptibility to severe pain has been observed either
when techniques are used sequentially or when they are used simultane-
ously—for example, when an insult slap is simultaneously combined with
water dousing or a kneeling stress position, or when wall standing is simul-
taneously combined with an abdominal slap and water dousing. Nor does
experience show that, even apart from changes in susceptibility to pain,
combinations of these techniques cause the techniques to operate differ-
ently so as to cause severe pain. OMS doctors and psychologists, moreover,
confirm that they expect that the techniques, when combined as described
in the Background Paper and in the April 22 [redacted] Fax, would not operate
in a different manner from the way they do individually, so as to cause se-

vere pain.32
If we recall the passage from Nancy Sherman with which we be-

gan chapter 3, we see here precisely the point Sherman seeks to make
in saying that torture is not solo work. The “Techniques” and “Com-
bined Techniques” memoranda show the interlocking roles of profes-
sionals in facilitating interrogation practices that are arguably abusive.
Lawyers, doctors, and psychologists interacted in ways that provided
mutual support for the practice of abusive interrogations. As Luban
and Shue point out, it makes little theoretical sense to conceptualize
torture as an exceptional event, and the experience with interrogations
at Guantánamo Bay and elsewhere provides an empirical case study of
how difficult it is to avoid systematizing abusive interrogations.
How Many Dirty Hands?

Criticism of US interrogation practices in the war on terror has tended
to crystallize around the role of Yoo and Bybee, but the assessment
of their work in terms of the norms of professional responsibility is
not enough. As we have seen, the interrogation memoranda were not
produced in a vacuum, and Yoo and Bybee were not alone in drafting
them. Lawyers at the National Security Council, the DOD, the White
House counsel’s office, and others were involved in vetting the work of
Yoo and Bybee. And their work took place against a backdrop in which
prominent legal academics like Alan Dershowitz were arguing for the
necessity of torture to preserve democratic values. Add to this the fact
that, although the reasoning of Yoo and Bybee was repudiated by their
successors at the OLC, the substantive conclusions they reached about
the legality of EITs were not repudiated, and the need to stress the in-
compatibility of torture with the rule of law becomes clear. Waldron,
Luban, and Shue present different arguments for why torture is a threat
to the rule of law and why, therefore, lawyers must not facilitate the
use of torture or cruel, inhuman, and degrading treatment, even if the
interest of national security appears to be at stake.
What these critics of torture in effect suggest is that the proper
functioning of the rule of law is undermined when the core values
108 Chapter Four
embedded in the law—avoidance of brutality, tyranny, arbitrary de-

tention, and so forth—are threatened by a practice that, by its nature,
works brutally and tyrannically, and that is unlikely to be contained
within neat legal categories. Indeed, examining the effort to legalize
but constrain torture and cruel, inhuman, and degrading treatment of
detainees may offer the best argument for the position of Waldron and
others. Jonathan Rothchild has put the point nicely. “The practice of
torture and its intended purposes of expediency, clarity, and utility,” he
writes, “lose all connections to the social and moral fabric of a soci-
ety; torture segregates law and morality in pernicious and hyperbolic
ways.”33 We can see this by attending to the consequences of legalizing
torture. For example, if torture is legal then there ought to be nothing
wrong with the government patenting torture devices. Yet to patent
torture devices is surely to sever the legitimate connection between
morality, law, and the common good.
The deep tension that exists when we imagine a government that
embraces human rights and the rule of law while simultaneously pat-
enting torture devices is heightened when we read the actual interro-
gation memoranda, and not just those produced by Yoo and Bybee.
These memoranda attempt to calibrate the delivery of pain and suffer-
ing so that legal thresholds preventing torture and cruel, inhuman, and
degrading treatment will not be reached. Consider, for example, this
passage from the “Combined Techniques” memorandum:
In one specific context, monitoring the effects on detainees appears par-

ticularly important. The Background Paper and the April 22 [redacted] Fax
illustrate that sleep deprivation is a central part of the “prototypical interro-
gation.” We noted in Techniques that extended sleep deprivation may cause
a small decline in body temperature and increased food consumption. See
Techniques at 33-34. Water dousing and dietary manipulation and perhaps
even nudity may thus raise dangers of enhanced susceptibility to hypother-
mia or other medical conditions for a detainee undergoing sleep depriva-
tion. As in Techniques, we assume that medical personnel will be aware of
these possible interactions and will monitor detainees closely for any signs
that such interaction are developing. See id. at 33-35. This monitoring, along
with quick intervention if any signs of problematic symptoms develop, can
be expected to prevent a detainee from experiencing severe pain.34
Perhaps even more extraordinary is the discussion of EITs found

in the “Techniques” memorandum. Consider, for example, the fol-
lowing summary of the technique of water dousing taken from that
memorandum:
Water dousing. Cold water is poured on the detainee either from a container
or from a hose without a nozzle: This technique is intended to weaken the
detainee’s resistance and persuade him to cooperate with interrogators.
The water poured on the detainee must be potable, and the interrogators
must ensure that water does not enter the detainee’s nose, mouth, or eyes.
A medical officer must observe and monitor the detainee throughout ap-
plication of this technique, including for signs of hypothermia. Ambient
temperatures must remain above 64° F. If the detainee is lying on the floor,
his head is to remain vertical, and a poncho, mat, or other material must
be placed between him and the floor to minimize the loss of body heat. At
the conclusion of the water dousing session, the detainee must be moved
to a heated room if necessary to permit his body temperature to return to
normal in a safe manner. To ensure an adequate margin of safety, the maxi-
mum period of time that a detainee may be permitted to remain wet has
been set at two-thirds the time at which, based on extensive medical litera-
ture and experience, hypothermia could be expected to develop in healthy
individuals who are submerged in water of the same temperature.35
The memorandum then goes on to give examples. For a water tem-

perature of 41°F, a maximum exposure of twenty minutes is allowed;
for 50°F, fifty minutes; for 59°F, sixty minutes.
Apart from the unsavory quality of government attorneys worry-
ing about calibrating food intake and body temperature so that they
dovetail with legal standards of severe pain, there is the ugly specter
here of those whose profession it is to uphold the rule of law demon-
strating greater concern for interrogators not crossing a line that might
leave them vulnerable to criminal prosecution than for those whom the
state seeks to humiliate and physically abuse for national security rea-
sons. The attempt to draw the line between torture and nontorture so
precisely is itself disturbing. That the state must control calorie intake
and basal body temperature more precisely than would be done in any
intensive care unit in order to stay just this side of the line on torture
110 Chapter Four
surely is an indicator that something is deeply wrong. For government

lawyers to be writing briefs stating that a detainee can be doused with
water that is 41°F but not water that is 40°F is troubling. What interest
is served by such definitional legal precision? Waldron suggests that no
legitimate interest is served. Claiming that the interrogator has a legiti-
mate interest in having a precise legal definition of torture is like a hus-
band saying he has an interest in pushing his wife around and therefore
needs to know precisely how much he can push her before it counts as
domestic violence.36
As I noted above, attending to how precisely the treatment of de-
tainees must be monitored in order to avoid crossing the legal bound-
ary of criminal behavior also drives home the close nexus between
law and medicine in the interrogation regime that emerged at Guan-
tánamo Bay and elsewhere. If, as I believe, Waldron and other legal
scholars are right that professional responsibility for attorneys includes
a commitment not to facilitate torture or cruel, inhuman, and degrad-
ing treatment under the cover of law, we must also ask about the role
of medicine in monitoring detainees. Is not the close monitoring of
detainees that the “Techniques” and “Combined Techniques” memo-
randa describe also a violation of professional responsibility? Is the
medical monitoring required by the CIA’s OMS guidelines and docu-
mented in OLC memoranda an unethical violation of the protections
afforded human research subjects under national and international
norms, as PHR alleges? It is to these and similar questions that we next
turn.
Notes
tice.org/files/Mora%20memo.pdf, 11.
2. Parts of this chapter have appeared in my previous essay “Torture Warrants
and Democratic States.”
3. Dershowitz develops his arguments in a series of essays: “Should the Ticking
Bomb Terrorist Be Tortured?”; “Reply: Torture without Visibility and Accountabil-
ity Is Worse Than with It”; “Torture Warrant”; and “Tortured Reasoning.”
4. Dershowitz, “Should the Ticking Bomb Terrorist,” 151–52.
5. Moussaoui was arrested in August 2001 after officials at a flight-instruction
school in Minnesota notified the FBI about their suspicions regarding Moussaoui.
He was charged with immigration violations, but the laptop and computer discs
found among his belongings were not searched at the time.
6. Note that Dershowitz sees the use of truth serum as relatively innocuous. I
think he is mistaken about this. Chapter 9 suggests why the use of truth serum may
be worse than the infliction of pain.
7. Dershowitz, “Should the Ticking Bomb Terrorist,” 144.
8. Ibid., 153.
9. Walzer, “Political Action.”
10. Ibid., 167.
11. Reeder, “What Kind of Person Could Be a Torturer?” 81.
12. Walzer, “Political Action,” 171.
13. Ibid., 167–68.
14. Page references for quotations from this work are given in the text below.
15. Walzer, “Political Action,” 178.
17. Although I understand Waldron’s argument that the work of Yoo, Bybee,
and Dershowitz should be read together, I take Dershowitz’s arguments much
more seriously. I do not agree with Dershowitz, but he provides a careful argu-
ment for accepting torture in rare cases consistent with the rule of law. Indeed,
his arguments are framed in terms of foundational democratic values. In this way,
Dershowitz’s position contrasts starkly with that developed in the interrogation
memoranda.
19. Ibid., 1698.
20. Ibid., 1723–24.
21. Ibid., 1726, 1727.
22. Luban, “Liberalism, Torture, and the Ticking Bomb,” 1426.
23. Ibid., 1430.
24. Ibid., 1439.
25. Ibid.
26. Shue, “Torture in Dreamland.”
27. Ibid., 237.
28. Luban, “Liberalism, Torture, and the Ticking Bomb,” 1445.
29. Steven G. Bradbury to John A. Rizzo, “Techniques” memorandum, OLC,
May 10, 2005, www.justice.gov/olc/docs/memo-bradbury2005-3.pdf, 8.
30. See, e.g., Morgan et al., “Symptoms of Dissociation in Humans Experienc-
ing Acute, Uncontrollable Stress.”
31. Physicians for Human Rights, Experiments in Torture, 7.
32. Steven G. Bradbury to John A. Rizzo, “Combined Techniques” memoran-
dum, OLC, May 10, 2005, www.justice.gov/olc/docs/memo-bradbury2005-2.pdf,
61.
112 Chapter Four
33. Rothchild, “Moral Consensus,” 146.

34. Bradbury to Rizzo, “Combined Techniques” memorandum, 62.
35. Bradbury to Rizzo, “Techniques” memorandum, 11–12.
Part II
Five
Treating Terrorists
The Conflicting Pull of
Role Responsibility
The United States is a country of law, and international human

rights laws regarding prisoners cannot be ignored or routinely
violated without the active cooperation, or at least acquiescence, of
lawyers and physicians, including military lawyers and physicians.
—George Annas, “Human Rights Outlaws,” 428
It is in the nature of torture that the two ubiquitously present [pro-

fessions] should be medicine and law, health and justice, for they are
the institutional elaborations of body and state.
—Elaine Scarry, The Body in Pain, 42
We saw in the last chapter how tightly legal analysis of coercive inter-
rogations was tied to medical monitoring and assessment of the health
needs of detainees. Interrogation techniques that are arguably abusive
were justified, in part, by the fact that doctors would carefully monitor
the medical status of detainees who were undergoing such treatment.
Medical findings were also used to calibrate coercive interrogations so
that long-term, permanent physical damage or death would not result
from interrogation techniques.1 Indeed, reading the OMS guidelines to-
gether with the Bradbury “Techniques” and “Combined Techniques”
memoranda provides a concrete sense of Elaine Scarry’s assertion,
quoted in an epigraph above, that medicine and law are destined to
be the two ubiquitous professions when a society moves toward the
legalization of torture or cruel, inhuman, and degrading interrogation
techniques. Lawyers cite the involvement of doctors as evidence that
the threshold levels of pain and suffering (in terms of which torture
and cruel, inhuman, and degrading treatment are defined) will not be
116 Chapter Five
reached, and physicians can be involved in coercive or abusive inter-

rogations because lawyers have defined the EITs as not constituting
torture.
The mutually reinforcing claims of law and medicine are important
here because the profession of medicine, more than that of either psy-
chology or law, has condemned the participation of physicians in tor-
ture. Steven Miles has traced the evolution of statements of medical
societies and human rights organizations on the role of physicians in
the treatment of prisoners in the post–World War II period, and dem-
onstrates both an increasing recognition of the role physicians have
played in facilitating torture or cruel, inhuman, and degrading treat-
ment of detainees and the need to put a stop to physician participation
in torture.2 For example, below is a list of various statements and proc-
lamations aimed at addressing the role of physicians.
• Declaration of Geneva (1948)

• World Medical Association, Regulation in Time of Armed
Conflict (1956)
• Declaration of Tokyo (1975)
• UN Principles of Medical Ethics (1982)
• World Psychiatric Association, Declaration of Madrid (1996)
This list could be dramatically expanded, but with virtually every new
statement there is movement toward harsher condemnation of the in-
volvement of medical personnel in coercive interrogations. The UN
Principles of Medical Ethics, whose full title is “Principles of Medical
Ethics Relevant to the Role of Health Personnel, Particularly Physi-
cians, in the Protection of Prisoners and Detainees against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,” are
especially clear. Indeed, the document is striking in its brevity and clar-
ity. The entire statement reads as follows:
Principle 1: Health personnel, particularly physicians, charged with the

medical care of prisoners and detainees have a duty to provide them with
protection of their physical and mental health and treatment of disease of
the same quality and standard as is afforded to those who are not impris-
oned or detained.
Principle 2: It is a gross contravention of medical ethics, as well as an of-
fence under applicable international instruments, for health personnel, par-
ticularly physicians, to engage, actively or passively, in acts which constitute
Treating Terrorists 117
participation in, complicity in, incitement to or attempts to commit torture

or other cruel, inhuman or degrading treatment or punishment.
Principle 3: It is a contravention of medical ethics for health personnel,
particularly physicians, to be involved in any professional relationship with
prisoners or detainees the purpose of which is not solely to evaluate, pro-
tect or improve their physical and mental health.
particularly physicians: (a) To apply their knowledge and skills in order to
assist in the interrogation of prisoners and detainees in a manner that may
adversely affect the physical or mental health or condition of such prisoners
or detainees and which is not in accordance with the relevant international
instruments; (b) To certify, or to participate in the certification of, the fit-
ness of prisoners or detainees for any form of treatment or punishment
that may adversely affect their physical or mental health and which is not in
accordance with the relevant international instruments, or to participate in
any way in the infliction of any such treatment or punishment which is not
in accordance with the relevant international instruments.
particularly physicians, to participate in any procedure for restraining a pris-
oner or detainee unless such a procedure is determined in accordance with
purely medical criteria as being necessary for the protection of the physical
or mental health or the safety of the prisoner or detainee himself, of his
fellow prisoners or detainees, or of his guardians, and presents no hazard to
his physical or mental health.
Principle 6: There may be no derogation from the foregoing principles
on any ground whatsoever, including public emergency.3
Suppose we assume that something like this commitment to avoid

any participation in interrogation is a consensus view among medical
professionals. What should we make of the apparent gap between such
a view and the OMS guidelines for medical personnel associated with
the CIA or the army regulations for medical personnel? We have al-
ready looked briefly at the OMS guidelines. Looking at the situation of
military medical personnel also helps us to answer this question.
Military Doctors and the Treatment of Detainees
As was true of psychologists, army medical personnel were accused

of misconduct in their participation in the interrogation of detainees
118 Chapter Five
in the war on terror, and the accusations triggered investigations and

accompanying reports. One such report was conducted by the Office
of the Surgeon General of the Army and provides an assessment of
detainee medical operations for Operation Enduring Freedom, Guan-
tánamo Bay, and Operation Iraqi Freedom.4 Because the assessment
focuses on medical policies and procedures as well as alleged detainee
abuse, it provides a useful introduction to the situation of military
medical personnel in the war on terror.
The team conducting the assessment interviewed medical personnel
in twenty-two states and five countries. They sought input from per-
sonnel who had served in the past, were then deployed, or were prepar-
ing for a future deployment. Several findings are particularly striking.
For example, the assessment found that serious inconsistencies were
present across theaters regarding pre- and postinterrogation screenings.
Frequently, such screenings were not documented in detainee medical
records, and some medical personnel were uncertain about whether
interrogations could be stopped for medical reasons.5 There were also
wide variations among units in the use of physical restraints, with little
clarity about the need to distinguish security-based restraint from med-
ically based restraint.6
In evaluating military medical operations, the assessment team re-
fers to relevant army policies, and the picture that emerges is one of
fairly clear policies that are not always clearly followed. According to
the assessment team, the applicable standard for medical care of de-
tainees is found in army regulation 40-400, dated 2001. Section 3-38
reads, “Members of the enemy armed forces and other persons cap-
tured or detained by U.S. Armed Forces are entitled to medical treat-
ment of the same kind and quality as that provided U.S. Forces in the
same area.”7 Unfortunately, the assessment team found, “not one single
interviewee, nor any team member prior to this assessment, knew of
the existence of paragraph 3-38.”8
Specific regulations for the treatment of detainees were also quite
clear and largely unknown. Army regulation 190-8, which governs the
treatment of “enemy prisoners of war, retained personnel, civilian in-
ternees, and other detainees,” states:
All prisoners will receive humane treatment without regard to race, nation-
ality, religion, political opinion, sex, or other criteria. The following acts are
prohibited: murder, torture, corporal punishment, mutilation, the taking

of hostages, sensory deprivation, collective punishments, execution with-
out trial by proper authority, and all cruel and degrading treatment.
All persons will be respected as human beings. They will be protected
against all acts of violence to include rape, forced prostitution, assault and
theft, insults, public curiosity, bodily injury, and reprisals of any kind. They
will not be subjected to medical or scientific experiments. This list is not
exclusive. EPW/RP [enemy prisoners of war/retained personnel] are to be
protected from all threats or acts of violence.9
At this point we face a conundrum. The report by the Office of the

Surgeon General, while acknowledging some cases of abuse, generally
paints a positive picture of the role of medical personnel in all three
theaters. Indeed, at several points the report makes categorical claims
that are hard to square with other compelling evidence. For example,
the report states that “there is no indication that BSCT personnel par-
ticipated in abusive interrogation practices.” Similarly, the report claims
that “there is no indication that any medical personnel participated in
abusive interrogation practices.”10 Discussing the team’s findings about
Guantánamo Bay, the report states that no interviewees, nor other
medical personnel that the interviewees knew of, were ever present at
or participated in an interrogation.
The problem with the claim that no medical personnel were present
during interrogations is that there is significant evidence to the con-
trary. To take just one example, the interrogation log for Detainee 063
makes it clear that BSCT members helped plan interrogation strate-
gies and that medical personnel provided frequent medical checks of
detainees during interrogations.11 Is the surgeon general’s report just a
cover-up? It would be easy to reach this conclusion, but I think it would
be a mistake to do so. The better interpretation is to acknowledge the
assessment team’s desire to present the work of the medical corps in
the best possible light. The report thus highlights the positive work of
the medical corps, while acknowledging that the training for medical
personnel did not prepare them for the reality they faced once the DOJ
and the secretary of defense approved EITs.
This interpretation does not explain the apparent contradiction be-
tween the report’s claims that medical personnel were not present and
did not participate in interrogations and what we know to be the facts
120 Chapter Five
of the case. The (unsatisfactory) explanation for why the report makes
these claims is found in a footnote to section 18-27. The footnote is
worth quoting in full: “For purposes of this recommendation the term
‘participating in interrogations’ refers to the active participation by
medical personnel during an interrogation. For example, asking ques-
tions would be active participation. Medical personnel who assist in
developing the plan of interrogation are not deemed to be ‘participat-
ing in an interrogation.’ Likewise, actual presence in the interrogation
room may not constitute ‘participating in an interrogation.’ For exam-
ple, personal observation by medical personnel to ensure the health
and welfare of the detainee is not deemed to be ‘participation in the
interrogation.’”12 This footnote refers to the specific recommendation
of section 18-27 that the DOD prohibit medical personnel from partici-
pating in interrogations, but the definition of “participating in interro-
gations” appears to apply to the whole document. Something like this
definitional gerrymandering seems also to be embedded in the claim
that medical personnel were not present during interrogations. Medi-
cal personnel certainly came to interrogation rooms to examine the
detainees’ vital signs and other indicators of physical well-being, but
being present in this way apparently does not count as being “present.”
Again, this kind of definitional maneuvering can be interpreted as a
form of prevarication, but the better explanation is that the assessment
team sought to uphold the highest ideals of military medicine and to
reconcile these ideals with the actual behavior of medical personnel in
the war on terror, which did not always match up. This effort at recon-
ciliation does not work, but the interesting fact to take away from the
attempt to reconcile theory and practice, ideals and reality, is that little
effort was made to change the ideals. Indeed, the report repeatedly calls
for reinforcing the restrictions on medical personnel found in existing
regulations and doing a better job of training medical personnel so that
they will know and act on the regulations.
To say that little effort was made to change the ideals is not to say
that no effort was made. Recall, for example, the principles set out in
the UN guidelines on medical ethics. Principles 2 and 4(b) can be sum-
marized as follows:
Principle 2: It is a violation of medical ethics for health personnel, particu-

larly physicians, to participate in torture or other cruel, inhuman, or de-
grading treatment or punishment.
Principle 4: It is a violation of medical ethics for health personnel, par-

ticularly physicians, to certify prisoners as fit for torture or cruel, inhuman,
or degrading treatment.
It is probably worth noting at this point that it is not just the Principles
of Medical Ethics adopted by the UN that prohibits physicians from
certifying prisoners as fit for interrogations; the Code of Ethics of the
American Medical Association (AMA) does so as well. The AMA code
reads, “Physicians must oppose and must not participate in torture
for any reason. Participation in torture includes, but is not limited to,
providing or withholding any services, substances, or knowledge to fa-
cilitate the practice of torture. Physicians must not be present when
torture is used or threatened. Physicians may treat prisoners or de-
tainees if doing so is in their best interest, but physicians should not
treat individuals to verify their health so that torture can begin or con-
tinue.”13 If we compare footnote 4 from the surgeon general’s report
with either UN principle 2 or the passage above from the AMA Code
of Ethics, we see an apparent effort to narrow the application of the
moral norm that physicians not be involved with interrogations. And
in the case of the UN guidelines this effort appears to have been an-
ticipated, for the guidelines make clear that passive participation is still
participation. Arguably, then, this move to narrow the application of
the principle could be construed as an effort to change the ideal, espe-
cially given that planning an interrogation is defined as not participat-
ing in the interrogation.
Yet it must also be noted that there is tension between the expansive
prohibition against physician participation in interrogations found in
both the UN principles and the AMA code and the expectation that
physicians will treat detainees in need. If medical personnel are check-
ing the vital signs of detainees regularly to ensure their well-being, how
will their actions not involve the certification of the fitness of detainees
for interrogation? If a physician detects a precipitous spike or drop in
a detainee’s blood pressure and insists that an interrogation session be
stopped, how is this not decertifying a detainee for interrogation, just
as to report a normal blood pressure would be to certify one?
122 Chapter Five
Conflicting Medical Duties
The problem with the code is that physicians cannot insure the safety
of detainees without effectively verifying whether or not a particular
detainee is fit to be interrogated. And physicians arguably have a re-
sponsibility to care for detainees. The philosopher Fritz Allhoff has
noted the paradox in claiming that professional responsibility would
preclude physician involvement in coercive interrogation. The paradox
is that, if one takes seriously the traditional tenets of medical ethics,
not only are physicians not prohibited from participating in interroga-
tions, they must participate. “The principle of beneficence,” Allhoff
writes, “requires at least minimal physician participation in hostile inter-
rogations, namely, in those cases where physician intervention would
be in the medical interest of the interrogatee.”14 The paradox is thus
that physicians both must and must not participate in interrogations.
Allhoff is not, however, interested in grounding the moral con-
straints on physicians in a code of professional ethics; he wishes instead
to challenge this very idea. And he develops two arguments here. The
first we have just seen. Although most medical codes strictly prohibit
the involvement of physicians with torture or cruel, inhuman, and de-
grading treatment of prisoners, such a conclusion appears inconsistent
with other value commitments enshrined in these codes. In effect, All-
hoff argues that there is an irreconcilable contradiction between the
medical profession’s commitment to beneficence and its prohibition on
physician participation in abusive interrogations. This argument is im-
portant and deserves a response, but Allhoff ’s second argument is even
more important for our project.
His second argument is that doctors acting as interrogators should
be understood to be medically trained interrogators who have no medi-
cal duties to those being interrogated. His arguments merit attention
because they are in fact directed at the social-trustee model of profes-
sionalism that is at the heart of this study.
Effectively, Allhoff takes aim at the social-trustee model of profes-
sionalism because he suggests that the command of medical knowl-
edge does not bring with it any moral responsibilities. He cites David
Tornberg, former deputy assistant secretary of defense for health af-
fairs, who claims that a medical degree is not a “sacramental vow,”
but is, in Allhoff ’s words, simply a “certification of technical merit.”15
Allhoff is not making a standard appeal to the idea of dual loyalty. He

is not claiming that a physician’s obligation to national security might
override his or her obligation to do no harm. He is claiming that a phy-
sician has no obligation as physician, because medical knowledge does
not generate obligations.
Allhoff offers an analogy by asking how knowledge works in other
professions. Do chemical engineers have a duty not to construct chemi-
cal weapons by virtue of the fact that they have the technical knowl-
edge that would allow them to build such weapons? Allhoff believes
that the answer to this question is no. There is, he says, “nothing intrin-
sic about their technical knowledge that would morally prohibit them
from doing something.”16 If that is true of chemical engineers, it is also
true of physicians.
Allhoff acknowledges that one response to his argument by anal-
ogy might be to suggest that it is not knowledge that generates obli-
gations but the role that one plays in using one’s knowledge. Medical
knowledge does not generate an obligation to avoid participating in
interrogations, but the role of physician is incompatible with partici-
pating in abusive interrogations. The problem with this move is that,
if a physician participates in an interrogation, he is serving not in the
role of physician but in the role of medically trained interrogator. In
other words, the role responsibilities of a physician get traction only
if a medically trained person agrees to that role. But doctors are not
required to serve the role of physician to everyone.
Although I do not agree with Allhoff ’s position here, it highlights an
interesting issue for those who wish to argue that physicians may be in-
volved with interrogations. The difficulty raised by Allhoff ’s view that
a physician participating in an abusive interrogation is only performing
the role of medically trained interrogator is that the legal justification
for approving EITs was premised on the assumption that medical per-
sonnel would be present and would function in a medical role. In the
case of waterboarding, a physician must be present.
Recall that the Bradbury “Techniques” memorandum required
a physician to be present, in case there is a medical emergency. The
memorandum is quite specific. “It is conceivable (though, we under-
stand from OMS, highly unlikely) that a detainee could suffer spasms
of the larynx that would prevent him from breathing even when the
application of water is stopped and the detainee returned to an upright
124 Chapter Five
position. In the event of such spasms, a qualified physician would im-

mediately intervene to address the problem, and, if necessary, the inter-
vening physician would perform a tracheotomy.”17
Given the reasoning embedded in the OLC memoranda, the OMS
guidelines, and the surgeon general’s report, Allhoff ’s argument is not
available to justify the participation of medical personnel in abusive
interrogations, at least not the participation of physicians. The frame-
work for EITs requires that doctors function in the role of physicians
when they participate in interrogations; they do not function merely as
medically trained interrogators.
This point is even clearer when we consider other activities engaged
in by physicians at Guantánamo Bay. Consider, for example, the role
played by physicians in responding to hunger strikers. The hunger
strikes at Guantánamo Bay are well documented, as is the work of phy-
sicians at the facility in force-feeding detainees. Indeed, as recently as
January 2009, nearly a fifth of detainees at Guantánamo Bay were on
hunger strikes. And the position of the DOD on responding to hunger
strikes is clear. A DOD instruction issued in June 2006 explicitly autho-
rizes tube-feeding of detainees without their consent. Section 4.7.1 of
the instruction reads: “In the case of a hunger strike, attempted suicide,
or other attempted serious self-harm, medical treatment or interven-
tion may be directed without the consent of the detainee to prevent
death or serious harm. Such action must be based on a medical deter-
mination that immediate treatment or intervention is necessary to pre-
vent death or serious harm, and, in addition, must be approved by the
commanding officer of the detention facility or other designated senior
officer responsible for detainee operations.”18
Although the DOD authorizes military doctors to force-feed hunger
strikers and clearly expects them to do so, force-feeding violates numer-
ous codes of medical ethics, including the Declarations of Tokyo and
Malta. If force-feeding rises to the level of torture, as a report of the
UN Commission on Human Rights concluded about force-feeding at
Guantánamo Bay, then it also violates numerous other codes, includ-
ing those discussed earlier in this chapter.19 Does Allhoff ’s argument
provide a justification for physician involvement?
Once again, I think Allhoff ’s argument is deeply problematic. As the
DOD instruction makes clear, in force-feeding detainees, physicians are
acting as physicians, not in some other role, and they are delivering
medical treatment. Although there is evidence to suggest that it is not

always a “medical determination” that triggers force-feeding, never-
theless that is the policy of the DOD, and it is hard to see how medi-
cally trained individuals here are acting in any role other than that of
physician.20
Although I do not think that Allhoff ’s argument is successful, it might
appear to threaten a social-trustee model of professionalism. Even if
Allhoff is right that one can separate the roles of medically trained in-
terrogators by distinguishing when they function as interrogators and
when they function as physicians and then restricting their medical ob-
ligations to the (limited) role they play as physicians, the social-trustee
model of professionalism remains intact. When they occupy the role of
physician, doctors have professional medical responsibilities as physi-
cians. To be sure, if one can separate roles as easily as Allhoff thinks,
then a social-trustee model of professionalism has weaker normative
force than otherwise. Yet even a weak normative force is better than
none. Can this normative force be explained?
Accounting for Role Responsibilities

The best treatment of the normative dimensions of role responsibili-
ties I know is found in Arthur Applbaum’s book Ethics for Adversaries:
The Morality of Roles in Public and Professional Life.21 Applbaum’s account
of role responsibilities is worth setting out in some detail. Applbaum
is concerned with adversarial institutions in our society. Law, business,
government, and medicine are all, at one time or another, adversarial
in the sense that acting as a professional within the field is understood
to require engaging in practices that would not be considered accept-
able outside of a particular role. A lawyer’s zealous defense of a client
may include manipulation and deception; a politician may engage in a
slanderous negative advertising campaign; a business manager’s com-
mitment to the bottom line is praised even when profits are raised at
the expense of workers; and a doctor working for a managed health
care system may be required not to mention transplants as treatment
options for certain conditions. Given that acting in adversarial fashion
will often result in harm to others, how can such actions be justified?
The answer typically given to this question is that, when one acts
in an adversarial fashion, she or he is fulfilling the requirements of a
126 Chapter Five
role. Occupying certain roles—or, for our purposes in this study, being
a member of certain professions—brings with it both requirements and
constraints that do not apply to those who are not in those roles or pro-
fessions. While an expertise-professionalism paradigm that separates
expert knowledge from social responsibility might pose a challenge
to this claim, the conviction that a doctor, for example, has particular
responsibilities that come with being a doctor is widely accepted. Ap-
plbaum certainly agrees that roles have normative significance, but he
urges caution in how we account for this significance. He begins with
an arresting case.
The example he discusses at length is that of the executioner of
Paris, Charles-Henri Sanson, who was appointed by Louis XVI. Louis
XIV had appointed Sanson’s great-grandfather to the post, and the posi-
tion of executioner was something of a family business. All six of San-
son’s brothers, as well as his son, were executioners. By all accounts,
Sanson was conscientious in discharging his role responsibilities, which
included torturing, mutilating, hanging, and beheading. And he func-
tioned in this role through changing political regimes. He executed
both Louis XVI and Robespierre. As Applbaum observes, any coherent
account of Sanson’s life and work must explain two facts: “first, every
revolutionary faction that gained momentary ascendancy viewed San-
son as a practitioner of a necessary profession; second, Sanson viewed
himself precisely this way” (19).
To provide a sense of Sanson’s approach to his work, Applbaum
imagines a conversation between one of Sanson’s contemporaries,
Louis Sébastien Mercier, and Sanson, in which Sanson defends himself
against the charge that he is a serial murderer.
You have recently wondered about me, “what an instrument—what a

man!” But that question misunderstands me in two ways. On the job, I am
neither an instrument nor a man. Let me explain.
I am not a mere instrument, if by that you mean one who takes no
responsibility for what his superiors demand of him. . . . I am not an instru-
ment devoid of mind or conscience, but a professional. Professions are com-
mitted to the realization of important values. My profession is the guardian
of a political value that is of utmost moral importance. . . . To this good
I have dedicated my life, and my practice as executioner has aimed at it
through all the changing regimes to which you accuse me of whoring. My

devotion is not to any one regime or political ideology, but to the good of
social order and the stability and security it brings. . . . To realize the good
of social order, my profession is committed to a simple principle: the state
must maintain its monopoly over violence. (36)
Applbaum imagines Sanson continuing his defense as follows:
What I mean by saying that on the job I am not a man is that I do not act as
a man simply. In exercising my professional duties I must set aside personal
considerations . . . 
I do not mean simply that the executioner may not take personal con-
sideration into account, but that the executioner cannot, and still be the ex-
ecutioner. . . . The act of execution that the executioner performs on the
scaffold does not exist apart from his professional role—it is constituted by
it. You would not describe what a surgeon does as stabbing, what a lawyer
does as robbing, or what a prosecutor does as kidnapping, would you? (39)
In order to understand Sanson’s claims here, we need to ask how role

responsibilities connect to moral evaluation. Applbaum suggests that
there are two ways to think about this connection. The first, “direct
moralization,” equates role prescriptions with moral prescriptions for
those who occupy the relevant role. The problem with this approach is
evident from Sanson’s role responsibilities. If direct moralization is the
correct account, then the fact that Sanson has a role responsibility to
lop off someone’s head means he has a moral responsibility to do so,
which is not plausible. Moreover, even in roles that have moral force,
not every role prescription has moral content.
The second account of the connection between role responsibili-
ties and moral evaluation Applbaum calls “mediated moralization.” On
this account, the obligations that come with a role are not themselves
moral prescriptions, and the standards for assessing excellence internal
to particular roles are not moral standards. Instead, “if one occupies a
role that has moral force, one has one big reason to follow the role’s
nonmoral prescriptions.” Applbaum continues, “If one’s role has moral
force of a certain sort, part of being a morally good person is to be
good at one’s role” (52).
128 Chapter Five
Of course, this account of the connection between role responsibili-

ties and moral evaluation does not presuppose that a particular role has
moral force. Nor does this account provide a means of determining
what roles have moral force. Indeed, although mediated moralization
has some advantages over direct moralization, it is not satisfactory on
its own. Both accounts provide pieces of the puzzle; both capture part
of the truth. The truth in direct moralization is that “though actual role
prescriptions are not themselves moral prescriptions, reasonable role
prescriptions may be. To the extent that what the role is tracks what
the role morally should be, the role is, in this sense, directly moralized”
(54). The truth in mediated moralization is that “there can be moral
reasons that obligate a role occupant to comply with the actual sub-
stantive prescriptions of roles, even when the content of what the role
is does not track the content of what the role should be” (55).
Applbaum concludes from this analysis that one way of understand-
ing the constraints imposed by role responsibilities is clearly mistaken.
Roles should not be understood on analogy with natural law. It is a
mistake, for example, to think that a doctor occupies a natural role such
that, because humans are the kind of creatures that fall ill and suffer,
those who have the skills to prevent or alleviate suffering have a natural
moral obligation to do so. Instead, what Applbaum proposes is a posi-
tion he calls “practice positivism.” Practice positivism is the view that
practices comprised by a role or profession are not natural but con-
ventional; they are stitched together by the social meanings of those
who engage in the practices and those who rely on the practices. As
Applbaum puts it in several places: “The rules of a practice simply are
what they are, not what they ought to be or what we want them to be”
(51).
Does this mean that Sanson is correct when he says that because he
executes not as a man but as an executioner, his role swallows up his
responsibility for killing another human being? Does acting in an insti-
tutional role change the description or the possible moral evaluation
of one’s action such that one can render a judgment only from within
the practice or by condemning the practice as a whole? The answer to
these questions is no, because acts always have more than one descrip-
tion and because a role never totally eclipses the person occupying the
role. Sanson both executes and kills (often in a gruesome fashion), and
it is never just Sanson the executioner that performs these acts, but San-
son the person.
Nevertheless, practice positivism complicates the relation between
roles and moral evaluation in that practices can change in ways that
undercut the normative purchase of particular roles. The example that
Applbaum explores in this regard is, in fact, medicine. Applbaum asks
us to reflect on the fact that various activities that physicians under-
take appear to violate role responsibilities internal to the profession of
medicine. If doctors’ first commitment is to the health of individual
patients, then a variety of professional activities appear to conflict with
this commitment. For example, clinician-researchers treat patients as
subjects, which potentially conflicts with treating them as patients.
Managed-care physicians are frequently gatekeepers more concerned
with the bottom line than with individual patient care. Does a physi-
cian’s role responsibility preclude him or her from being a researcher or
gatekeeper? To answer this question, Applbaum says, consider the case
of Spaulding v. Zimmerman.22 The facts of the case are as follows. John
Zimmerman had a serious car accident, which resulted in extensive
injuries to David Spaulding, a passenger in the car. Spaulding sought
damages from Zimmerman, and Zimmerman’s insurance company
had Spaulding examined by a company doctor. The doctor discovered
a life-threatening aneurysm that Spaulding’s own doctors had missed.
The insurance-company physician did not reveal the condition to
Spaulding or his doctors and instead informed the insurance company
and Zimmerman’s lawyer. Not surprisingly, the lawyer recommended
that the insurance company settle with Spaulding before the aneurysm
was discovered or burst.
We might think that this physician had an intrinsic role responsibil-
ity that would require him to inform Spaulding of the aneurysm. The
problem with this thought is that it conflicts with the view of practice
positivism that a practice is what it is and not what it ought to be or
what we want it to be. The upshot is that even if current role responsi-
bilities of physicians are understood to preclude failing to disclose a life-
threatening aneurysm, the insurance-company doctor might respond
by saying: “Fine. If you don’t think my work for the insurance company
meets the standards of doctoring, call what I do schmoctoring.” Ap-
plbaum claims that there is nothing preventing a doctor from making
130 Chapter Five
this “doctor/schmoctor” response. As long as he does not violate the

law or any pre-professional moral obligations, he is free to employ his
training and knowledge as he sees fit. Call it schmoctoring, if you don’t
want to call it doctoring.
At this point, it might seem that Applbaum has embraced an exper-
tise model of professionalism, for, as he concedes, in effect, profession-
als can deploy their expertise as they see fit. Is this not the view that
expertise is untethered to any conception of the common good? Yes and
no. There is no intrinsic connection between expert knowledge and the
common good, but a practice establishes a conventional connection.
The insurance-company physician can act as a schmoctor, but not as a
doctor, at least not as long as those who doctor define their practice as
requiring one to notify a person one has examined of a life-threatening
condition. Thus, in one sense, Applbaum’s rejection of the notion of a
natural role for a physician heightens the importance of professional
associations and codes of ethics. For if a practice is what it is and not
what it ought to be, then if enough doctors feel unconstrained by a pre-
vious generation’s understanding of doctoring and instead understand
themselves as schmoctors, then schmoctors will become doctors.
At this juncture, it is worth noting that, although I have distinguished
between a social-trustee model of professionalism and an expertise
model, the more precise formulation of the contrast would be social
trusteeship vs. neutral expertise.23 The qualifier “neutral” is important
at this stage of the argument, because the assumption behind an exper-
tise model of professionalism is that knowledge itself is neutral and so
can be mobilized in any way a professional chooses. Someone who has
been medically trained can use his knowledge to heal or to interrogate.
The fact that he has expert medical knowledge does not itself constrain
the expert’s action.
In one sense, of course, an account of professionalism that relies on
practice positivism cannot deny this claim. I have already indicated, for
example, that there is nothing about the nature of medical knowledge
that itself constrains how physicians act. Practice positivism is, in this
way, antiessentialist. Yet to talk of neutral professional expertise, as if
neutrality equals lack of constraint, is profoundly misleading. To see
why, recall the discussion in the introduction about how to define pro-
fessions. We saw that Eliot Freidson provides one important, but fairly
typical, account. He identifies five elements of professions:
1. specialized work in the officially recognized economy that is believed to

be grounded in a body of theoretically based, discretionary knowledge
and skill and that is accordingly given special status in the labor force;
2. exclusive jurisdiction in a particular division of labor created and con-
trolled by occupational negotiation;
3. a sheltered position in both external and internal labor markets that is
based on qualifying credentials created by the occupation;
4. a formal training program lying outside the labor market that produces
the qualifying credentials, which is controlled by the occupation and as-
sociated with higher education; and
5. an ideology that asserts greater commitment to doing good work than
to economic gain and to the quality rather than the economic efficiency
of work.24
Points 1–4 suggest why it is misleading to talk about neutral ex-

pertise, even if one accepts a nonessentialist account of the norma-
tive character of the professions. Freidson could be clearer here, for
he assumes a lot when he says that discretionary knowledge and skill
are “accordingly given special status in the labor force.” This “accord-
ingly” needs to be unpacked, for it gestures toward the relationship be-
tween professions and the social recognition of professional practices.
Indeed, what is implicit in elements 1–4 is the reality of state licens-
ing of professions. Yes, professions have a special (protected) status in
the labor market on the basis of knowledge that is typically associated
with higher education, and professions are self-policing, in part because
one needs the specialized knowledge of the professional in order to
evaluate professional competence. Note, however, that the vehicle for
market protection is a credentialing and licensing system that is coordi-
nated through the state. And the state does not create such a system to
protect every group that has specialized knowledge.
The fact that many occupations are loosely called professions tends
to obscure the role of the state in valuing certain kinds of expertise and
not others. If, for example, you enter “film critics association” in an in-
ternet search engine, you will get results for the Los Angeles Film Crit-
ics Association, the Southeastern Film Critics Association, and other
such groups. Further, the websites for these groups will indicate that
their associations are organizations of “professional” film critics. But
to speak of a professional film critic in this way is only to say that a
132 Chapter Five
particular individual earns his or her living through film criticism. It is

not to speak of a profession as we have used the term in this study.
In one sense, of course, to refer to individuals who earn their living
through film criticism as professional critics is to acknowledge the fact
that such individuals often have extensive knowledge of film history, of
literature, of the technical demands of cinematography, and of much
else besides. In fact, the best film critics probably have command of a
body of knowledge far exceeding that of a typical psychologist. But we
would not speak of the film critic as a member of a profession in a way
that we would of a psychologist. The reason is that the psychologist,
but not the film critic, is licensed by the state on the basis of a creden-
tialing system put in place and monitored by fellow professionals.
The difference between a profession that is state recognized and
state licensed and a profession understood as merely a particular kind
of occupation, even one that demands highly specialized knowledge, is
that only the latter can be understood as value neutral. The professions
of psychology, medicine, and law are not value neutral because society
has recognized them as involving matters so important to the common
good that they require both protection and oversight. For this reason,
there is a check on the position of practice positivism articulated by Ap-
plbaum. Yes, a profession is what it is and not necessarily what it ought
to be. And, yes, professions can change if practitioners as a group begin
to practice differently. Nevertheless, because the expertise mobilized
by professionals is valued by society and therefore recognized and re-
stricted by the state, the state could withdraw its recognition in ways
that could reduce a profession to an occupation. To put this point in
Applbaum’s terms, doctors could become schmoctors, but in doing so
they might forfeit their status as professionals that society values, re-
wards, and regulates.
Once we acknowledge the tight connection between expertise that is
socially valued and the regulation of professions embedded in codes of
professional ethics that are partly enforced by the state, we see how talk
of neutral expertise is misleading. We also see that a profession could
come to define itself out of existence by effectively repudiating the so-
cial contract to use its expertise for the common good. Thus, practice
positivism can, just as an essentialist view of the professions can, ac-
count for why there are certain actions that physicians or psychologists
may not perform. The obligation to maintain the social contract also
falls to those who are charged with regulating professions. For those
who would change a profession in ways that threaten to undermine
the social role the profession plays may not represent the profession as
a whole. This is why it is important for those who monitor professional
standards to do their jobs. Oversight boards need to discipline depar-
tures from the established norms of professional practice. It is to this
point that we next turn.
Notes
1. “Office of Medical Services Guidelines on Medical and Psychological Support
to Detainee Rendition, Interrogation and Detention,” OMS, May 17, 2004, avail-
able on the American Civil Liberties Union website, www.aclu.org/torturefoia/
released/103009/cia-olc/2.pdf.
2. Miles, Oath Betrayed.
3. “Principles of Medical Ethics Relevant to the Role of Health Personnel, Par-
ticularly Physicians, in the Protection of Prisoners and Detainees against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment,” Office of
the United Nations High Commissioner for Human Rights, December 18, 1982,
www2.ohchr.org/english/law/medicalethics.htm.
4. Office of the Surgeon General, Assessment of Detainee Medical Operations.
5. Ibid., 1-4.
6. Ibid., 1-7.
7. “Army Regulation 40-400: Patient Administration,” Department of the Army,
March 12, 2001, available on the Washington Research Library Consortium Ala-
din Research Commons website, http://dspace.wrlc.org/doc/get/2041/63339/
00100display.pdf, sec. 3-38, p. 25.
8. Office of the Surgeon General, Assessment of Detainee Medical Operations, 7-3.
9. “Army Regulation 190-8: Enemy Prisoners of War, Retained Personnel, Civil-
ian Internees and Other Detainees,” Department of the Army, October 1, 1997,
http://armypubs.army.mil/epubs/pdf/r190_8.pdf, sec. 1-5 (b) and (c), p. 2.
10. Office of the Surgeon General, Assessment of Detainee Medical Operations, 18-
12, 18-16.
11. “Interrogation Log: Detainee 063,” Secret Orcon, November 23, 2002, avail-
able on the Time website, www.time.com/time/2006/log/log.pdf.
12. Office of the Surgeon General, Assessment of Detainee Medical Operations, 18-
22, n. 4.
13. “Opinion 2.067—Torture,” AMA Code of Ethics, December 1999, www
.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-eth
ics/opinion2067.page.
134 Chapter Five
14. Allhoff, “Physician Involvement in Hostile Interrogation,” 395.

15. Ibid.
16. Ibid., 398.
17. Steven G. Bradbury to John A. Rizzo, “Techniques” memorandum, May 10,
2005, www.justice.gov/olc/docs/memo-bradbury2005-3.pdf, 15.
18. “Medical Program Support for Detainee Operations,” instruction no.
2310.08E, DOD, June 6, 2006, www.dtic.mil/whs/directives/corres/pdf/231008p
.pdf, sec. 4.7.1.
19. Economic and Social Council (Commission on Human Rights), “Situation
of Detainees at Guantánamo Bay,” February 15, 2006. Reprinted in International
Legal Materials 45 (2006): 716–41.
20. Annas, “Hunger Strikes at Guantanamo.”
21. Page references for quotations from this work are given in the text below.
22. 263 Minn. 346, 116 N.W. 2d 704 (1962).
23. The discussion that follows is indebted to Dave Ozar, who pressed me to
explore the question of value neutrality.
Six
Discipline and Punish

The Importance of
Professional Accountability
The foundation on which the analysis of a profession must be based

is its relationship to the ultimate source of power and authority in
modern society—the state.
—Eliot Freidson, Professional Dominance, 83
If the argument in the previous chapter is correct, the efforts of those

who resisted the participation of psychologists, lawyers, and doctors in
abusive interrogations were an attempt, in Eliot Freidson’s words, to
save the soul of their professions. In speaking of the “soul” of a profes-
sion, I am not invoking any metaphysical or essentialist claim about the
nature of particular professions. On the contrary, as I said in chapter 5,
I take very seriously Applbaum’s view that professions are what they
are and not what they ought to be or what we want them to be. If Ap-
plbaum is right about this, then the effort to prevent professionals from
participating in abusive interrogations is an attempt to shape profes-
sions so that what they are coincides with what we believe they ought
to be, while recognizing that they could be different. This is why the
fight about the APA Code of Ethics that we examined in chapter 1 was
so significant: it was about what psychology is and will be. This is also
why the fierce resistance to the work of Yoo and Bybee, even by those
who agreed with the conclusions reached in the interrogation memo-
randa, is important. Allowing the legal arguments of Yoo and Bybee to
go unchallenged threatened to define the standards of the profession
downward and thus erode public confidence in lawyers and ultimately
in the rule of law.
136 Chapter Six
If the actions of professionals in debates about whether to autho-

rize or participate in abusive interrogations was a defining moment for
several professions, it is important to acknowledge that the work of
professionals in defining their profession did not end when the inter-
rogations ended, if indeed they have. The struggle for the “soul” of
various professions continues in ways that have not been sufficiently
appreciated. It is to some of those struggles that I turn in this chapter.
The Role of Professional Licensure

In order fully to understand the significance of the postinterrogation
activism of critics of abusive interrogations, we need to return to the
point on which we ended the previous chapter; namely, the role of li-
censing and disciplining professional practice. If an essentialist view of
professions is rejected, then some mechanism for identifying and, more
importantly, overseeing professional practice is necessary. Apart from
stabilizing professional identity, regulating professional life is central
to insuring that the professions actually promote the common good, a
commitment that is central to a social-trustee model of the professions.
As with accounts of professionalism generally, there are primarily
two views of professional licensure. The first, a public interest model,
corresponds to the social-trustee approach to the professions. The sec-
ond, a “capture” model, dovetails with expertise professionalism. And
just as expertise professionalism is the preferred view among sociolo-
gists, so do economists champion the capture model.
Mario Pagliero states the contrast between the two models succinctly
in his attempt to understand the effects of licensing requirements for
various occupations. He notes that there has been a proliferation of
such requirements and that “more than 800 occupations are licensed in
at least one U.S. state.”1 Why, he asks, has there been an explosion of
licensing requirements, and what effect has this sort of state regulation
had?
To answer these questions, Pagliero considers both the typical ra-
tionale for, and the typical result of, “professional” licensing.2 If one
focuses on the typical rationale for licensing, the public interest model
emerges; if one focuses on the results of licensing, the capture model
appears more compelling. The idea behind the public interest model
is that the services provided by some professions are such that only
Discipline and Punish 137
professionals in that field are capable of determining who is a compe-

tent practitioner of the profession. In the technical jargon of economic
theory, there is an information asymmetry that can lead to market
failure. Consider the application of this model to medicine. Because
doctors, but not patients, are able to distinguish those who are highly
qualified to practice medicine from those who are quacks, without a
system of licensing overseen by physicians, patients will suffer at the
hands of quacks, and quacks and qualified physicians will compete in
the marketplace, which in turn will lower the price of medical services.
When compensation declines, more qualified doctors will either leave
or not enter the market.
The public interest model of licensing thus takes its name from the
conviction that screening prospective professionals for at least minimal
competence and disciplining established professionals for falling below
minimal standards of competence provides a mechanism for protecting
both individuals and society from potentially harmful incompetence.
And, indeed, as many theorists have pointed out, almost all attempts
to defend licensing requirements for occupations have been justified by
appealing to the notion of public interest. Consider, for example, the
objectives of licensing lawyers, as set out by the ABA and the National
Conference of Bar Examiners: “The public interest requires that the
public be secure in its expectation that those who are admitted to the
bar are worthy of the trust and confidence clients may reasonably place
in their lawyers.”3
By contrast, the capture model looks more to the economic effects
of licensing and concludes that the standard justification in terms of
the public interest is not supported by empirical evidence. If licensing
is not defensible in terms of the public interest, there must be some
other interest it serves. There is, say capture theorists: it serves the in-
terest of professionals in a field by increasing salaries through the re-
striction of the supply of qualified professionals. As Pagliero puts the
point, the approach of capture theory is “that professional examina-
tions are intended to limit the number of professionals, increase prices,
and weaken competition, thereby introducing the typical inefficiencies
caused by market power.”4
If capture theory appears to adopt a cynical view of professional
licensure, there is reason for the cynicism. Any number of studies, go-
ing back to the 1960s, provide reasons for doubting the public interest
138 Chapter Six
argument and accepting the capture model. Pagliero’s own study of

professional licensing for attorneys suggests that the main effect of li-
censing requirements is roughly a $10,000 increase in starting salaries
for lawyers, which “implies a total transfer from consumers to lawyers
of 19% of lawyers’ wages and a total welfare loss of over $3 billion.”5
This line of argument can be traced back at least as far as Alex Maurizi’s
1974 article “Occupational Licensing and the Public Interest.” Maurizi
contends that, despite the rhetoric that licensing safeguards the public
interest, the reality is that licensing promotes the interests of those who
are licensed and not of the public. He summarizes his findings by not-
ing that “a 10 percent increase in excess demand generates a decrease
in the pass rate [in licensing exams] varying primarily from 1 percent
to 10.” Similarly, “a 10 percent increase in average practitioner incomes
produces up to a 10 percent decrease in the pass rate.” The evidence
thus appears to confirm the notion that “the power of licensing boards
is often used to prolong the period of higher incomes resulting from
increases in excess demand for the services of the occupation in ques-
tion and that the instrument then used to accomplish this purpose is
alteration of the pass rate on the licensing examination.”6
Walter Gellhorn reaches a similar conclusion in his study titled “The
Abuse of Occupational Licensing.” He writes: “That restricting access
is the real purpose, and not merely a side effect, of many if not most
successful campaigns to institute licensing schemes can scarcely be
doubted. Licensing, imposed ostensibly to protect the public, almost
always impedes only those who desire to enter the occupation or ‘pro-
fession’; those already in practice remain entrenched without a demon-
stration of fitness or probity.”7
This last point Gellhorn makes is particularly relevant to our cur-
rent study. I do not doubt that imposing a system of licensing is, and
in many cases may well be intended to be, a way to capture a market
for the benefit of those who are so licensed. There is a lot of empiri-
cal evidence to support the view that licensing has deleterious labor-
market effects. This is especially true in the imposition of credentialing
and licensing requirements that control entry to an occupation. Notice,
however, that entry requirements are only one aspect of professional
licensing. Licensing and disciplinary mechanisms go together. Unfortu-
nately, Gellhorn is probably also right when he says that those already
licensed who are in fact unfit to practice a profession are rarely disci-
plined or expelled from the profession.
In my view, the lack of oversight of professional practice and the
failure to sanction alleged misconduct is a much more serious threat to
the public good than the monopolistic practices of overregulating ac-
cess to a particular occupation. Certainly if licensing boards raise stan-
dards on certifying exams in response to an increase in the supply of
applicants, then some who are in fact qualified to practice medicine or
law will not be given the opportunity to do so and the diminished sup-
ply of competent professionals may keep the cost of professional ser-
vices unnecessarily high. But this harm is small compared to the harm
an incompetent or unethical professional may cause.
Capture theorists may be right that professional standards fre-
quently serve the interests of those licensed and not the public, but
as I have insisted a number of times in this study, to acknowledge a
reality is not to accept it. Professionals may view themselves as experts
for hire, and they may even cynically manipulate a licensing system to
insure a higher standard of living than they otherwise would have. But
our discussion of the responses of various professional groups to the
war on terror suggests that many professionals see their work in very
different terms.
This is why the work of professionals to hold their colleagues ac-
countable for alleged violations of professional standards is important.
Our brief examination of professional licensure thus provides a context
for the postinterrogation activism of professionals seeking to hold their
colleagues accountable, for accountability is central to insuring that
professions do serve the public interest.
The Importance of Professional Accountability

Consider the efforts by some psychologists to hold accountable their
fellow psychologists who participated in abusive interrogations at
Guantánamo Bay. Just as there are mechanisms for screening appli-
cants who seek membership in a profession, so, too, are there oversight
mechanisms as part of state licensing laws. For example, in the state
of New York, the Board of Regents and New York State’s Education
Department oversee regulation of the professions through the Office
140 Chapter Six
of the Professions. The Office of the Professions in turn administers

state regulation of professions through twenty-nine State Boards for
the Professions.
We can see how these state boards function by examining the New
York Board of Psychology’s review of the complaint brought to it in
the aftermath of abusive interrogations at Guantánamo Bay. The com-
plaint was brought by the Center for Justice and Accountability on
behalf of Steven Reisner, a board-licensed psychologist in New York,
against John Leso, another licensed psychologist in the state. In his let-
ter to the board, Reisner states his complaint succinctly:
Under the authority of his New York license, Dr. Leso has used his expertise
for the purpose of harming rather than protecting the health of detainees
at Guantánamo Bay, Cuba. Dr. Leso used his training in psychology to ex-
ploit the weaknesses of detainees not only in the context of specific interro-
gations, but also in a systematic fashion; recommending that U.S. personnel
use a series of increasingly abusive interrogation techniques designed to
degrade, dehumanize, and disrupt the cognitive function of detainees held
in U.S. custody, and to increase their mental pain and suffering, for the pur-
pose of modifying their behavior, punishing, or intimidating them. As such,
I believe he should be investigated and disciplined accordingly.8
To understand the complaint that Reisner lodges, it is important to

know that John Leso led the first BSCT at Guantánamo Bay from June
2002 until January 2003. In this role, he coauthored an interrogation
policy memorandum that drew upon SERE training in outlining an
interrogation strategy that was physically and psychologically abusive.
He personally participated in the interrogation of Mohammed al Qah-
tani, a fact that is documented in the interrogation log for Detainee
063.9 The complaint alleges that, in serving in the role of BSCT psy-
chologist, Leso violated various New York State laws.
Even if Leso violated the sections of the law enumerated in the
complaint, it might reasonably be asked whether the New York State
Board of Psychology has jurisdiction to review Leso’s action as a mili-
tary officer stationed in Cuba. In fact, the New York Office of Profes-
sional Discipline denied jurisdiction, but not because Leso acted as a
military officer outside the state of New York. Instead, jurisdiction was
denied because the alleged misconduct does not constitute the practice
of psychology as defined by the state. The reasoning of the director

of the Office of Professional Discipline, Louis Catone, is particularly
interesting in light of our discussion of role responsibility in chapter 5.
He writes: “While the military (or a civilian employer) is free to require
that one hold a particular professional license as a condition of obtain-
ing a position, that, without more, does not mean that some or all of
the activities performed for that employer constitute the practice of a
profession. The fact that Dr. Leso may have possessed special knowl-
edge gained through his education, training, and/or experience as a
psychologist that made him useful to the military in developing interro-
gation techniques does not mean that Dr. Leso’s conduct in that regard
constituted the practice of psychology.”10
There is a peculiar logic at work in the decision of the Office of
Professional Discipline. Although the army established BSCTs precisely
for the purpose of utilizing the expertise of psychologists in interro-
gations, and although the army requires military psychologists to be
licensed in at least one of the fifty states (and the army’s own clinical
quality assurance guidelines indicate that a license is valid only where
the “issuing authority accepts, investigates, and acts upon quality as-
surance information, such as practitioner professional performance,
conduct, and ethics of practice, regardless of the practitioner’s military
status or residency”11), the Office of Professional Discipline said it did
not have jurisdiction because Leso was not acting as a psychologist.
Despite the fact that this office declined to investigate Leso, the pos-
sibility that it might have done so highlights the interconnections be-
tween professional codes, state and federal law, and military regulations
that we have seen repeatedly in this study. The complaint against Leso
is possible because the military recognizes the authority of states to li-
cense professionals and states recognize the importance of professional
codes in setting state licensing requirements. The allegations of mis-
conduct brought against Leso are framed in terms of New York State
law, but they are, at bottom, allegations that Leso violated the APA
Code of Ethics. Indeed, state standards typically embed professional
standards, which is precisely what we see in New York. For example,
the rules of the Board of Regents governing unprofessional miscon-
duct in New York define misconduct, in part, by reference to standards
in the professions themselves. “Unprofessional conduct in the practice
of any profession licensed, certified or registered pursuant to title VIII
142 Chapter Six
of the Education Law,” we read, “shall include willful or grossly negli-

gent failure to comply with substantial provisions of Federal, State or
local laws, rules or regulations governing the practice of the profession.”12
The fact that state licensing requirements for psychologists reflect
professional standards of conduct set out by the APA should come as
no surprise. Since the 1950s, the APA has provided states with a Model
Licensing Act (MLA) designed to be a template for state law governing
licensing and regulation of psychologists. The APA adopted the first
MLA in 1955, when only nine states licensed psychologists. Between
1955 and the first revision of the MLA in 1967, twenty-three additional
states adopted licensing requirements. By 1977, the goal of promulgat-
ing the MLA had been accomplished; all fifty states and the District of
Columbia had enacted licensing requirements.13
Keeping this in mind, we see that the effort to get New York’s Office
of the Professions to investigate allegations of professional misconduct
against John Leso and to discipline him if he was found guilty of the
allegations made against him was an attempt to uphold standards of
conduct within the profession of psychology. There is, I think, a ten-
dency to interpret this effort at discipline as unnecessarily vindictive
or inappropriately punitive. Those who adopt this position are inclined
to argue that while it is admirable to fight for specific policy positions
within the APA or to fight to revise the Code of Ethics to prohibit (or
permit) specific actions of psychologists in the war on terror, it is mis-
guided to seek sanctions against Leso and others. Leso was doing the
best he could in an ambiguous situation, and he should not be punished
for attempting to follow orders and safeguard national security by fa-
cilitating abusive interrogations.
We have seen the problem with this view above. If licensure is to
serve the public interest, as the APA, ABA, and almost every other pro-
fessional association say that it should, then professionals must be held
accountable for violations of codes of conduct. Thus, as important as
the fight within psychology was to define the standards of conduct set
out in the APA Code of Ethics as they apply to the role of psychologists
in coercive interrogations, the effort to sanction psychologists who are
perceived to have violated the code is perhaps even more important. It
is thus not surprising that some of the same advocates for restricting
APA endorsement of participation in the war on terror have been ac-
tively pursuing complaints against the psychologists involved at Guan-
tánamo Bay and elsewhere.
In addition to the complaint filed against John Leso in New York,

complaints have been filed against Larry James in Ohio and James
Mitchell in Texas.14 None of these complaints has been greeted with
much enthusiasm by the state agencies responsible for professional
oversight, and the regulatory provisions in state law are sufficiently
loose that significant disciplinary action is unlikely in these or other
cases that may be brought in the near future. Nevertheless, these ef-
forts to hold psychologists accountable are important to professional
identity, even if the failure by states to take disciplinary action threatens
that identity and undermines claims about professions serving the pub-
lic interest.
The recognition of the importance of oversight of the conduct of
professionals by the state has led not only to complaints to state boards
of professional review, but to efforts to change state law to make disci-
plinary action easier. The most striking example comes from Califor-
nia, where, in a joint resolution with the state assembly, the state senate
passed Joint Resolution 19, which resolved that California’s licensed
health professionals could be prosecuted for participation in abusive or
enhanced interrogations, torture, or other forms of cruel, inhuman, or
degrading treatment of those in US custody. The declaration further
resolved “that in view of the ethical obligations of health professionals,
the record of abusive interrogation practices, and the Legislature’s in-
terest in protecting California-licensed health professionals, the Legisla-
ture hereby requests the United States Department of Defense and the
Central Intelligence Agency to remove all California-licensed health
professionals from participating in any way in prisoner and detainee
interrogations that are coercive or ‘enhanced’ or that involve torture or
cruel, inhuman, or degrading treatment or punishment, as defined by
the Geneva Conventions, CAT, relevant jurisprudence regarding CAT,
and related human rights documents and treaties.”15
Although not as far-reaching as the California law, an effort has also
been made by legislators in New York explicitly to prohibit the involve-
ment of health care professionals in abusive interrogations. A5891, in-
troduced into the general assembly in March 2011, seeks to amend the
education law in New York to eliminate professional participation in
interrogation. Section 4(D) reads: “No Health Care Professional shall
participate in the interrogation of a prisoner, including being present in
the interrogation room, asking or suggesting questions, advising on the
use of specific interrogation techniques, monitoring the interrogation,
144 Chapter Six
or medically or psychologically evaluating a person for the purpose of

identifying potential interrogation methods or strategies.”16
If we return to the complaint against John Leso, we can see that
A5891 would remove any ambiguity about whether Leso’s action in-
volved professional misconduct. For example, the complaint notes that
Leso prepared a memorandum proposing strategies of interrogation
that were subsequently adopted at Guantánamo Bay. A5891 does per-
mit psychologists to develop effective interrogation techniques and to
train others in their use, as long as the techniques do not involve tor-
ture or improper treatment and as long as the training is “not provided
in support of specific ongoing or anticipated interrogations.”17 But
Leso was involved with ongoing interrogations, and the techniques set
out in the memo are problematic.
The memorandum identified three categories of interrogation tech-
niques, two of which would clearly be prohibited. Category II tech-
niques included “stress positions; the use of isolation for up to 30 days
(with the possibility of additional 30 day periods, if authorized by the
Chief Interrogator); depriving a detainee of food for up to 12 hours (or
as long as the interrogator goes without food during an interrogation);
the use of back-to-back 20 hour interrogations once per week; removal
of all comfort items including religious items; forced grooming; hand-
cuffing a detainee; and placing a hood on a detainee during questioning
or movement.” Category III techniques were even more extreme: “the
daily use of 20 hour interrogations; the use of strict isolation without
the right of visitation by treating medical professionals or the Interna-
tional Committee of the Red Cross (ICRC); the use of food restrictions
for 24 hours once a week; the use of scenarios designed to convince
the detainee he might experience a painful or fatal outcome; non-inju-
rious physical consequences; removal of clothing; and exposure to cold
weather or water until such time as the detainee began to shiver.”18 Had
A5891 been law when Leso authored the memorandum that set out
interrogation techniques in categories II and III, he clearly would have
been in violation of New York law, and efforts to discipline him for pro-
fessional misconduct would almost certainly have been easier.
George Annas has noted that efforts at accountability can extend
beyond domestic mechanisms. For example, German citizens have
sought to have Donald Rumsfeld and other American officials prose-
cuted for war crimes in a German courtroom. As Annas notes, even
if such a trial is unlikely, the effort to bring an indictment represents

a time-honored strategy of securing a kind of accountability through
“naming and shaming.” The fact that this effort was made in Germany,
says Annas, itself serves as a reminder that the Nuremberg trials held
various professionals responsible for the atrocities perpetrated under
the Nazi regime.19
Annas also notes that, apart from criminal prosecution—either
domestically or internationally—there are other actions that can be
taken against physicians, lawyers, and other professionals to ensure ac-
countability. For example, Annas, Michael Grodin, and Leonard Glantz
have suggested that an international tribunal could be established that
would have the authority to investigate allegations of professional mis-
conduct and condemn professionals found guilty of violating norms of
professional responsibility. Even though no criminal sanctions could be
imposed, the tribunal’s ability to publicly identify wrongdoing might
provide “a powerful deterrent to grossly unethical conduct.”20
What precisely such a tribunal would look like is unclear, but An-
nas and Grodin, in another essay, have sketched out the basic contours
of an international medical tribunal. Such a tribunal would ideally be
established with the approval and support of the UN. It would have the
power to establish (or recognize as authoritative) an international code
of ethics, hear cases, and publicly condemn physicians found to have vi-
olated the code. Indeed, Annas and Grodin are quite specific about the
makeup and operation of such a tribunal. It should consist of a “large
panel of distinguished judges” from numerous countries, and because
it must be “authoritative and politically neutral, no single country or
political philosophy could be permitted to dominate it, either by having
a disproportionate representation on the tribunal or by disproportion-
ately funding it.”21
One of the most interesting aspects of Annas and Grodin’s proposal
is that it links the work of such a tribunal to national and state licensing
boards. They write:
Steps should be taken at the level of national medical licensure boards (and
state boards in countries in which political subdivisions have medical licens-
ing authority) to articulate specific rules denouncing physicians who com-
mit war crimes and crimes against humanity. Those found to have been
involved in such crimes would lose their license to practice medicine, or be
146 Chapter Six
ineligible to obtain one if they were not yet physicians. Physicians who lost
their license to practice medicine for war crimes or crimes against human-
ity in one jurisdiction would be prohibited from practicing medicine in all
jurisdictions. Licensing agencies themselves could enter into a compact or
agreement to adopt and enforce these rules and goals.22
Notice that Annas and Grodin’s proposal anticipates lawyers and

physicians working together to put in place mechanisms of oversight
and discipline to ensure that professionals abide by the norms of prac-
tice set out in established codes. In this way, their work recognizes the
flip side of the collaboration between medicine and law, documented
earlier in this study, which enabled abusive interrogations in the first
place. Ideally, professions are self-policing, but a public interest model
of professional licensure recognizes that the relationship between the
public interest and the work of professionals is mediated by the state
and the instrumentality of law.
Earlier in this chapter, I suggested that, as important as the efforts
to establish clear norms of professional conduct are, efforts to enforce
norms might be even more important. In terms of the material on
which we have focused, this point can be illustrated by saying that the
collaborative work between psychologists and attorneys to bring alle-
gations of misconduct by licensed psychologists before state licensing
boards is possibly more important than the attempt to prevent the APA
from embracing a change in its policy that would allow psychologists
to participate in abusive interrogations. Both involve recruiting state
power to the purpose of maintaining professional identity and account-
ability, but the former does this directly while the latter moves indi-
rectly toward this end.
In chapter 3 we discussed Associate Deputy Attorney General David
Margolis’s decision not to accept the recommendation of the OPR that
the DOJ refer John Yoo and Jay Bybee to their respective bars for disci-
plinary action. As we saw, Margolis’s view was that the OPR’s findings
and his decision were “less important than the public’s ability to make
its own judgments about these documents and to learn lessons for the
future.”23
In one sense this is true. The investigations of and the complaints
against various professionals have generated a small mountain of docu-
mentary evidence that provides a much clearer picture of the actions
of professionals in the war on terror than we would have had without

these efforts at accountability.24 And we should also note that while it
is the actions of psychologists, lawyers, and physicians that have been
the focus of worries about professional misconduct, the initiatives to
secure accountability have been undertaken by professionals seeking to
defend professional integrity, often through collaborations with profes-
sionals in other fields. For example, lawyers with the Center for Justice
and Accountability worked with psychologists to file the complaint
against John Leso. Similarly, lawyers from Harvard’s International Hu-
man Rights Clinic worked with psychologists to file the complaint in
Ohio against Larry James. And these joint efforts provide a detailed pic-
ture of the role of psychologists at Guantánamo Bay. Those who take
the time to review the documentary evidence generated through these
efforts are in a reasonable position to judge for themselves whether
there was professional misconduct at Guantánamo Bay.
Nevertheless, while transparency is important, so, too, is actual ac-
countability. At least thus far, no psychologist has been disciplined for
participating in abusive interrogations. No lawyer has been sanctioned.
No doctor’s medical license has been genuinely threatened. And al-
though the DOJ appointed a special prosecutor to investigate the ac-
tions of the CIA in destroying videotapes of interrogations, no charges
were filed. Although the legal work of Yoo and Bybee was found to be
substandard, Yoo is a tenured professor at the University of California
at Berkeley and Bybee is a federal judge on the US Court of Appeals
for the Ninth Circuit. The fact that no actual findings of misconduct
associated with professional sanctions have been forthcoming does not,
of course, mean that there has been no actual accountability. Yet the
evidence of misconduct is substantial enough to lead us to recall Rob-
ert Jay Lifton’s observation, quoted in chapter 1, that “if a professional
society is unable to take a stand against torture, it is pretty much un-
able to take a stance against any immoral behavior.” Before turning
to consider the relationship between professional codes and the habits
and attitudes of professionals, we might wonder in the spirit of Lifton
whether a profession that is unable to discipline a member for partici-
pating in torture is able to discipline its members for any behavior. In
the idiom discussed in chapter 5, if doctors are not disciplined for acting
like schmoctors, then there will be no difference between doctors and
schmoctors and no way to protect the public from doctor/schmoctors.
148 Chapter Six
Notes
1. Pagliero, “What Is the Objective?” 2.
2. I use scare quotes here because only a small percentage of the eight hundred
occupations would qualify as professions given the definition that we have relied
on in this study. For example, barber, hairdresser, embalmer, real estate broker,
plumber, and similar occupations would be included in Pagliero’s study of pro-
fessional licensing. Although these occupations would not count as professions as
defined in this volume, the general points made by Pagliero still apply.
3. Pagliero, “What Is the Objective?” 5.
4. Ibid., 2.
5. Ibid., 1.
6. Maurizi, “Occupational Licensing and the Public Interest,” 412.
7. Gellhorn, “Abuse of Occupational Licensing,” 11–12.
8. Steven Reisner and the Center for Justice and Accountability to the New York
Office of the Professions, “Complaint—John Francis Leso, NY License #013492,”
available on the Courthouse News Service website, accessed August 16, 2011,
www.courthousenews.com/2011/04/06/Leso%20complaint.pdf.
9. Leso’s presence is noted in the records for November 23 and 27, 2003; the log
is available on the Time website at www.time.com/time/2006/log/log.pdf.
10. Louis Catone to Kathy Roberts, “Re: John Francis Leso, Psychologist (Com-
plaint of Dr. Steven Reisner,” New York State Education Department, July 28, 2010,
available on the Center for Justice and Accountability website, www.cja.org/down
loads/No.%202.%20NYOP%20Denial%20of%20Jurisdiction.7.28.10.pdf.
11. Quoted in “Complaint—John Francis Leso, NY License #013492,” 2.
12. “Rules of the Board of Regents: Part 29, Unprofessional Conduct,” October
5, 2011, available on the website of the Office of the Professions, New York State
Education Department, www.op.nysed.gov/title8/part29.htm, sec. 29.1.b.1 (italics
mine).
13. It is worth noting that the MLA explicitly frames the intent of licensure as
to promote the public good. For that reason, the APA recommends that legisla-
tion should have a section declaring its intent: “This section declares that the intent
of legislation for state licensure of psychologists is to ensure the practice of psy-
chology in the public interest. The consumer should be assured that psychological
services will be provided by licensed and qualified professionals according to the
provisions of this act. The public must also be protected from the consequences of
unprofessional conduct by persons licensed to practice psychology.” “Model Act for
State Licensure of Psychologists,” APA, February 20, 2010, www.apa.org/about/
policy/model-act-2010.pdf, 1–2.
14. Michael Reese, Trudy Bond, Colin Bossen, and Josephine Setzler to Ronald
Ross, “Complaint Form—Larry C. James, License No. 6492,” July 7, 2010, available
on the Harvard Law School Human Rights Program website, www.law.harvard

.edu/programs/hrp/documents/Larry_James_6492.pdf; Jim L. H. Cox, “Com-
plaint Form—James Elmer Mitchell, License No. 23564,” June 16, 2010, available on
the True/Slant website, www.trueslant.com/toddessig/files/2010/06/MIT-FINL
.pdf. Mitchell helped design the interrogation of Abu Zubaydah.
15. “Senate Joint Resolution No. 19—Relative to Health Professionals, August
14, 2008,” available on the Official California Legislative Information website,
http://leginfo.ca.gov/pub/07-08/bill/sen/sb_0001-0050/sjr_19_bill_20080818
_chaptered.pdf.
16. A5891, 2011–12 Ass., Reg. Sess. (N.Y. 2011), available at http://open.ny
senate.gov/legislation/bill/A5891-2011.
17. Ibid., sec. 5(D).
18. Reisner to Office of the Professions, 7.
19. Annas, “Human Rights Outlaws.”
20. Grodin, Annas, and Glantz, “Medicine and Human Rights,” 463.
21. Annas and Grodin, “Medicine and Human Rights,” 16.
22. Ibid., 17.
23. David Margolis, associate deputy attorney general, to the attorney general,
memorandum, January 5, 2010, available on the US House of Representatives
Committee on the Judiciary website, http://judiciary.house.gov/hearings/pdf/
DAGMargolisMemo100105.pdf, 67–68.
24. A report by Human Rights Watch claims that there are over 100,000 pages of
government documents on the mistreatment of detainees: Human Rights Watch,
Getting Away with Torture, 8.
Seven
Professional Responsibility and

the Virtuous Professional
To say that an agent has a regulative ideal is to say that they have in-
ternalised a certain conception of correctness or excellence, in such
a way that they are able to adjust their motivation and conduct so
that it conforms—or at least does not conflict—with that standard.
—Justin Oakley and Dean Cocking,
Virtue Ethics and Professional Roles, 25
Thus far we have examined how codes of ethics and professional re-
sponsibility have structured debates among professionals about appro-
priate conduct in assisting the government in the war on terror. We
have also examined an account of how such codes function normatively
in regulating behavior. This exploration has taken us a long way toward
the goal of understanding how some of our fellow citizens are reason-
ing in deciding how to act morally in the war on terror. Recall Jeffrey
Stout’s view that democracy is a tradition in which reason giving is cen-
tral. The fact that professionals have reasoned by appeal to norms of
professional codes of conduct is important. But it is also important to
note a second point highlighted by Stout’s account of democratic prac-
tices; namely, that such practices are sustained by dispositions, virtues,
and habits of thought that must be cultivated and continually renewed
if democratic practice is to flourish.1 Up to this point we have focused
primarily on the rule-governed character of professional engagement
in the war on terror. It is now time to turn to the relationship between
role responsibilities, character, and democratic virtues.
To this end, I want to draw on an account of the relationship be-
tween role responsibilities and virtues that understands professional
responsibility in terms of a general theory of virtue ethics. There are
other ways to understand the role responsibilities of professionals, and
Professional Responsibility and the Virtuous Professional 151
as we saw when we examined Applbaum’s practice positivism, one

need not draw on a general moral theory to account for professional
ethics. Still, understanding professional responsibility in terms of virtue
ethics is one way to explain the importance of the professions to the
formation of character and of habits of mind and heart that support
democratic practice.
Professional Responsibility and Virtue

The best account I know of the theory of virtue ethics as it applies
to professional responsibility is that offered by Justin Oakley and Dean
Cocking in their book Virtue Ethics and Professional Roles. Oakley and
Cocking rely on an Aristotelian conception of virtue in an attempt to
show that professional responsibility is best understood by accounting
for how professions give rise to particular virtues. Determining whether
a particular course of action is a violation of professional responsibility
is thus often a matter of asking what a virtuous professional would or
would not do in a particular situation. But because they offer an Aristo-
telian account of virtue, asking about what a virtuous person would do
should be understood to include an inquiry into not just the acts that a
virtuous person would undertake but the dispositions and motives that
would accompany the action.2
The criterion of right action offered by virtue ethics can thus be
framed in terms of what Oakley and Cocking call a regulative ideal,
which is an internalized conception of excellence. As they put the
point, a regulative ideal is “an internalised normative disposition to di-
rect one’s action and alter one’s motivation in certain ways.”3 As the
language of internalizing a standard of excellence suggests, Oakley and
Cocking’s understanding of professional responsibility is a teleological
account, according to which the standards of role responsibility are de-
termined by how well one’s conduct in a role serves the goals of the
profession. For this reason, in order to develop an ethics for a profes-
sion, one must specify “what the appropriate orientation and essential
guiding concerns of the particular profession ought to be.”4
In exploring the usefulness of Oakley and Cocking’s account for our
project, we are aided by the fact that they offer a description of what
the guiding concerns of two of the professions we have taken up ought
to be. Consider, for example, their account of the goals of medicine.
152 Chapter Seven
According to Oakley and Cocking, a good doctor is in fact guided by

a conception of the practice of medicine that understands health to be
a good that is central to any plausible account of human flourishing.
Moreover, the regulative ideal of medicine includes the awareness that
disease and illness are particularly threatening to a patient’s sense of
self-identity. “A particular sensitivity central to the regulative ideal of
good doctoring, therefore, is an awareness of a patient’s vulnerability
to the loss of control and self-direction which disease brings to their
lives.”5
This regulative ideal of medicine would, of course, need to be filled
out, but already we can begin to see how a regulative ideal functions
in guiding a professional’s sense of responsible professional activity.
Consider an analogy with the regulative ideal governing one plausible
understanding of a good teacher.6 This analogy can be explored by re-
viewing the debate in higher education in recent years over the “com-
modification of education.” Any number of studies about the growing
commodification of education might be cited here. What they all have
in common is a focus on the way universities have increasingly come
to understand themselves in market terms. One of the best of these
studies is Derek Bok’s book Universities in the Marketplace: The Com-
mercialization of Higher Education. Bok, a former president of Harvard
University, begins his book by describing a commencement address he
imagines giving at Harvard that is structured around a series of dreams
that Bok tells the assembled crowd he had in the weeks leading up to
the address.
Although the address is fictitious, Bok describes how in his dreams an
extremely wealthy alumnus approached him with a variety of schemes
for easing the constant pressure to raise money for the university. The
alum’s advice was to let the market work for Harvard in the same way
it had worked for him. Among the revenue-generating possibilities was
a plan for turning Harvard’s football program into a big-time college
bowl contender, auctioning off the last hundred spaces in every enter-
ing class to the highest bidder, and selling advertising space in Harvard
syllabi and classrooms and on the university website.7 Let us consider
this last proposal in some detail.
Almost every academic professional with whom I have discussed the
possibility of selling advertising space in a syllabus has been adamantly
opposed to the idea. But why? Arguably, selling advertising space might
benefit all parties involved. The university would increase revenues,

faculty members might receive increased remuneration, tuition might
be lowered, and advertisers would reach a target audience in new ways.
Why, then, do faculty appear to be so opposed to the idea? The answer,
I believe, is clear if we consider the idea of the regulative ideal govern-
ing the profession of education.
Particularly if we focus on the ideals governing traditional liberal
arts education, we see a commitment to the transfer of knowledge
from previous to later generations with the assumption that the search
for knowledge can be personally transformative. The regulative ideal
of a professor in the liberal arts is that of a mentor and role model for
students whose relation to the students is neither that of a parent nor
a friend, but closer to that of a guide. If this is the regulative ideal gov-
erning teachers in higher education, then selling advertising space in a
syllabus is something a virtuous educator simply would not do. Selling
advertising space might not violate any provisions in a faculty hand-
book or contradict one’s contractual obligations to a university, but do-
ing so is incompatible with the regulative ideal of higher education.
The logic of the marketplace that would put a price on access to
students in the classroom is corrosive of the ideal of a faculty-student
relationship. I do not mean to deny that universities are a business or
that, in one sense, classes are commodities for sale in the marketplace.
Neither do I want to romanticize faculty-student interactions. There
are certainly times when teachers and students interact in fairly cal-
culating ways. Still, most faculty members do not take a merely cal-
culative interest in their students, and most understand their work of
generating, preserving, and transmitting knowledge as part of a social
commitment to shape habits of mind that are crucial to securing the
common good. The idea of selling advertising space in a syllabus—
with its accompanying vision of faculty-student interactions on the
model of seller-buyer—is profoundly at odds with the regulative ideal
of a professor concerned about students as individuals whose future is
importantly shaped by the disinterested pursuit of knowledge, includ-
ing the pursuit of self-knowledge.
If we return to the profession of medicine with this analogous reg-
ulative ideal drawn from education in mind, we see why Oakley and
Cocking suggest that the regulative ideal in medicine rules out certain
motives, dispositions, and actions in medical professionals. For example,
154 Chapter Seven
if a physician’s overriding guiding aim or goal in practicing medicine is

to make money, he has betrayed the profession of medicine. This is not
to say that the goal of making money is incompatible with the ethical
practice of medicine. It is to say that a physician whose primary goal is
making money is not a virtuous physician, and not merely because his
greed is likely to lead to actions that violate codes of professional con-
duct. He has simply not internalized the regulative ideal of medicine
and thus is likely to betray those ideals in a variety of ways.
The example Oakley and Cocking offer here is interesting because
it resonates with the example of a professor selling advertising space
in his or her syllabus. They cite an advertisement placed in an Austra-
lian newspaper by a cosmetic surgery practice. The ad reads as follows:
“World leading cosmetic surgery clinic [invites applications for a] Pa-
tient Advisor: Working closely with the principal surgeon and other
team members, you will develop long term relationships with patients
to insure repeat business.”8 Oakley and Cocking are not condemning cos-
metic surgery as a field of medicine; their point is that, by making re-
peat business the focus of this cosmetic surgery practice, the physicians
associated with this practice violate the regulative ideal of medicine.
Here it may seem that Oakley and Cocking adopt a position at odds
with Arthur Applbaum’s practice positivism, for someone might well
ask why cosmetic surgeons cannot make soliciting return business the
overriding goal of their practice. The practice of cosmetic surgery is
just what it is, whether we like it or not. Oakley and Cocking are aware
of this tension with Applbaum and in fact respond to Applbaum help-
fully and persuasively. They argue that “medicine has characteristic
ends that define and set limits on what sorts of actions it is coherent
to describe as practising ‘medicine.’”9 In other words, the fact that the
goals of medicine are conventional, that they are not rooted in the “na-
ture of things,” does not mean that we are free to define medicine any
way we please. Oakley and Cocking insist that “the proper application
of the label ‘doctor’ cannot be resolved by mere stipulation, or by ap-
peals to tradition alone.” Rather, the issue is to some degree a matter
of consistency. Can one profess to serve both goal X and not-X simul-
taneously? For example, in the case involving the advertisement of the
cosmetic surgery clinic, we may reasonably ask whether individuals
who profess to be guided by the regulative ideal of health for their pa-
tients can make repeat business a fundamental part of their own job
description.10
Oakley and Cocking make two very important points at this junc-
ture. First, the fact that roles are socially constructed as Applbaum sug-
gests does not mean that the regulative ideals of particular roles are
open to wholesale revision, either by an individual practitioner or by
the profession as a whole. It is not the case that one can shrug one’s
shoulders and say, “There really is no difference, but call us schmoc-
tors, if you prefer to refer to us as schmoctors rather than doctors.”
Second, the conventional nature of roles does nothing to lessen the im-
portance of social expectations created by the recognition of particular
roles in a society. When those roles are also connected to goods central
to human flourishing, those expectations are especially compelling. As
Oakley and Cocking put this point: “Some roles serve worthier goals
than others—so it would become a particular cause for concern if a
large group of individuals (and very socially powerful and influential
individuals) who professed to have an overriding commitment to very
worthy goals decided to abandon those goals and pursue ends that are
entirely different.”11
In the previous two chapters we explored both the normative force
of role responsibility and the importance of professional accountability
when role responsibilities have been neglected or violated. We can now
see more clearly why exploring the role responsibilities of psycholo-
gists, lawyers, and doctors who were called on to participate in or de-
fend coercive interrogations is so important. Physical health, mental
health, justice, and the rule of law are centrally important to individ-
ual and group flourishing. If influential members of the professions
in which securing these goods is a constitutive ideal abandoned that
goal in pursuing the war on terror, then the public trust in these profes-
sions will have been violated and the professions themselves called into
question.
Medicine and the Public Trust

Were the goals and ideals of psychology, law, and medicine abandoned?
Answering that question would require a book in itself, but exploring
the question in relation to medicine, if only partially, may help us to see
more fully the complexity of professional responsibility and the impor-
tance of the teleological account of the virtuous professional that we
have explored in this chapter. The first thing to notice as we attempt to
answer this question is that this effort will not be as straightforward as
156 Chapter Seven
it might seem. In chapter 5, we catalogued some of the codes of medi-

cal ethics that prohibit physician involvement with torture. Recall the
UN Principles of Medical Ethics, principles 3 and 4 of which read as
follows:

particularly physicians, to be involved in any professional relationship with
prisoners or detainees the purpose of which is not solely to evaluate, pro-
tect or improve their physical and mental health.
particularly physicians: (a) To apply their knowledge and skills in order to
assist in the interrogation of prisoners and detainees in a manner that may
adversely affect the physical or mental health or condition of such prisoners
or detainees and which is not in accordance with the relevant international
instruments; (b) To certify, or to participate in the certification of, the fit-
ness of prisoners or detainees for any form of treatment or punishment
that may adversely affect their physical or mental health and which is not in
accordance with the relevant international instruments, or to participate in
any way in the infliction of any such treatment or punishment which is not
in accordance with the relevant international instruments.
Now it might seem that the best way to answer the question of whether
the guiding ideals of the profession of medicine have been abandoned
is to ask, for example, whether principles 3 and 4 or similar provisions
of other codes of ethics have been violated. This has largely been the
tack taken by Steven Miles in his extraordinarily important work Oath
Betrayed. Such an examination of the application of codes to actual
practices is important, but it is not enough.
In suggesting that Miles has focused perhaps too narrowly on the
standard provisions of human rights documents and relevant codes of
professional ethics, I do not mean to disparage his work. The profes-
sion of medicine is deeply indebted to Miles for his prophetic call for
moral accountability of the physicians who may have violated codes of
professional conduct. Instead, I seek to draw attention to what Miles
himself at times articulates eloquently; namely, that international hu-
man rights conventions and the codes of medical ethics that support
those conventions embody and seek to specify ideals that are central
to human flourishing. “The international standards and medical ethics
pertaining to the treatment of prisoners,” he writes, “are not dry spec-

ifications such as those constituting the bulk of ordinary federal and
state laws. They are not finicky in a way that can be evaded or under-
mined with obfuscations. They are breathing statements of worldwide
moral aspirations.”12
Despite this recognition that provisions of medical codes of ethics
embody profound moral ideals, Miles’s treatment of medical com-
plicity in torture is largely confined to how the actions of particular
physicians violated codes of conduct rather than whether the policy
of medical involvement with coercive interrogations was incompat-
ible with the regulative ideal of medicine. Miles notes that physician
involvement with torture typically takes one or another of six forms:
certifying prisoners as fit for harsh treatment, monitoring persons
during torture or interrogation, concealing evidence of abusive inter-
rogation or torture, conducting research on prisoners, overseeing the
systematic deprivation of prisoners’ basic needs, and failing to report
abuse.13 The chapters in Oath Betrayed are largely devoted to demon-
strating examples of how US physicians were complicit with torture in
these six ways.
Again, this task of documenting physician involvement in the war
on terror is extremely important, but it is also important to ask, for
example, whether examining prisoners to insure that they can with-
stand harsh interrogation or monitoring prisoners during interrogation
is necessarily incompatible with medicine’s regulative ideal of promot-
ing health. The tighter the connection between physician involvement
and coercive interrogation is, the harder it will be to make the case that
screening or monitoring is compatible with the goals of health. This is
why the OMS guidelines put in place by the CIA and the requirement
of physician involvement set out in the “Techniques” and “Combined
Techniques” memoranda issued by the OLC in 2005 are so problem-
atic. Physician involvement is the necessary precondition of abuse.
Paradoxically, the issue of whether screening and monitoring are
compatible with the regulative ideal of medicine may help explain the
puzzling claims of the report of the Office of the Surgeon General of
the Army that we noted in chapter 5. Recall, for example, the apparent
contradiction between the report’s claims that medical personnel were
not present at and did not participate in interrogations and the fact that
we know that physicians were present. We saw that the report accounts
158 Chapter Seven
for this apparent contradiction by claiming that a physician’s presence

at an interrogation does not count as participation if he or she is there
to ensure the health and welfare of the detainee being interrogated. It
is of course possible that the best explanation for why the investigative
team chose to define participation narrowly was to protect their own,
but it is also plausible to believe that they rejected the tight connection
that the OLC sought to secure between the presence of a physician and
a green light for EITs. In other words, it is plausible to suppose that
some physicians saw screening and monitoring of detainees as consis-
tent with a commitment to the ideals of the profession of medicine,
because the detainees were going to be harshly interrogated whether
or not physicians monitored their physical and emotional conditions.
If detainees would be interrogated with or without physician involve-
ment, better, the reasoning might go, that physicians be present to
monitor them.
This is essentially the position we saw articulated in chapter 5 by
Fritz Allhoff, who argues that physicians actually have a duty to moni-
tor interrogations. We saw that Allhoff also argues that physicians can
choose not to act as doctors, in which case they serve as medically
trained interrogators. There is obviously a tension between the posi-
tion that physicians must help detainees by screening and monitoring
them and the position that physicians can choose not to act as phy-
sicians and therefore can use their medical knowledge to help break
down detainees, but the tension helps us to see that a robust under-
standing of professional responsibility might lead a physician who has
thoroughly internalized the regulative ideal of medicine to feel com-
pelled to screen and monitor detainees.
The tension between the view that physicians can essentially take
their doctor hat off and the view that they have a professional responsi-
bility to treat, even in a circumstance where treatment may be a condi-
tion of continued abuse, is particularly acute in the case of dealing with
hunger strikers. If a physician may not simply step out of his role as a
doctor in dealing with detainees, then a conscientious physician will be
confronted with a particularly vexing moral dilemma when he or she is
asked to force-feed a hunger-striking detainee. Suppose, for example, a
physician at Guantánamo Bay has requested and received permission to
have no involvement with BSCTs; he has scrupulously avoided medical
monitoring of detainees during interrogation but has treated them af-

ter interrogation; and he has consistently worked to improve the living
conditions of detainees. Conditions have improved, but a number of
detainees have started a hunger strike. The physician is now ordered to
force-feed the strikers. Is complying with this order an abandonment
of the regulative ideal of medicine? Is force-feeding the detainees an
abandonment of his responsibilities as a physician?
We saw in chapter 5 that numerous codes of medical ethics prohibit
force-feeding. This is why prominent medical ethicists have condemned
the force-feeding of prisoners at Guantánamo Bay. Yet even opponents
of force-feeding acknowledge that this is a difficult case. George Annas
and Michael Grodin, for example, point to the lack of consensus on
force-feeding:
For physicians, some of the most difficult situations involve individuals in

the custody of the state, usually in prisons or other detention centers. In
this context there have been deaths, most notably of 10 Irish hunger strik-
ers in Maze Prison in Northern Ireland in 1981. Hunger strikes present
two primary ethical questions for doctors: when is it ethical to force-feed a
competent adult hunger striker, and when is it ethical to artificially provide
nutrition to a hunger striker who has become incompetent or unconscious?
Medical groups have offered conflicting ethical advice on the first issue, and
virtually no guidance on the second. Thus, actual practice is mostly based
on the personal beliefs of individual physicians rather than on profession-
ally agreed upon ethical principles.14
In the face of this situation, our hypothetical physician might ap-

propriately consult the Declaration of Tokyo or a similar ethics code
and conclude that he should not force-feed detainees. But he might also
appropriately ask whether, in a situation where his government has
treated detainees in ways that lead them to prefer death to continued
existence, he might reasonably act to keep detainees alive in the hope
that they may be released.
I am not claiming that physicians were in fact acting out of a com-
mitment to the best ideals of medicine when they force-fed detainees
at Guantánamo Bay. In fact, at least some of the evidence suggests that
force-feeding was punitive and was undertaken entirely too early in the
160 Chapter Seven
strikes to be motivated solely by concern for the medical well-being of

the detainee. My point is that it is plausible to suppose that a physician
who had internalized the best ideals of medical practice might reach a
conclusion that professional responsibility required force-feeding.
My point can be illustrated by Oakley and Cocking’s discussion of
physician-assisted suicide. Many supporters of assisted suicide note
that a patient’s autonomous request for help in dying ought to be hon-
ored by physicians because death may be preferable to continued ex-
istence in, say, unremitting pain. Yet Oakley and Cocking claim that
physicians may decline to assist a suicide precisely because they see as-
sisting a suicide as incompatible with the substantive goals of medicine
to which they are committed as physicians. As Oakley and Cocking put
the point, “a substantial number of doctors feel that they cannot, qua
doctors, act on a patient’s autonomous request to be killed,” even when
the request is well founded. Doctors may simply “feel that to kill such
a patient at their autonomous request is to betray the goal of serving
health which fundamentally defines their profession of medicine.”15
A similar point can be made about a physician confronting a decision
whether to force-feed a detainee at Guantánamo Bay. Just as a physician
whose help in dying has been requested may decide that he cannot, as a
physician, assist a suicide, so too may a physician decide that, as a physi-
cian, he must not let a detainee die who is driven to a life-threatening
hunger strike by actions the physician believes are immoral. In both
cases, patient autonomy is important, but in both cases professional in-
tegrity may lead the physician to override that autonomy.16
It may appear that I am now contradicting positions and arguments
I endorsed earlier. I have suggested that codes of professional respon-
sibility are enormously important both for stabilizing the expectations
that citizens may reasonably bring to their interactions with profession-
als and for (thereby) justifying the special treatment professionals are
accorded because they serve the common good. It may now seem that
I am recommending violating professional codes in the name of pro-
fessional integrity. This apparent contradiction is reconciled in the fact
that the account of professional responsibility on which I am relying is
teleological in kind. Codes ought to serve the substantive goods toward
which professions strive, and the truly virtuous professionals are those
who have internalized the goods and goals of professional life beyond
simply knowing what a code of professional ethics requires.
The Importance of Regulative Ideals
Recall that the very notion of a regulative ideal is defined as a concep-

tion of correctness or excellence that is internalized by a professional
in such a way that he conforms his motivations and conduct to that
standard. Codes of ethics help delineate the standard of excellence, and
they reflect an effort to specify in practical terms what excellence might
require, but they do not exhaust or trump the standard. Ideally, a code
helps shape the character of the professional who seeks to embody a
standard of excellence, but, in the end, the code is judged by whether it
promotes the ends that the profession is expected to serve.
Once again the example of Alberto Mora is deeply instructive. We
saw in chapter 3 that Mora was opposed to the enhanced interrogation
policy implemented at Guantánamo Bay. He took quick and aggres-
sive action in an effort to change the policy once he discovered it, even
though it was clear that his superiors wanted the policy to remain in
place. He articulated the reasons why he believed that the enhanced
interrogations were both unlawful and unwise practically, but what is
striking in the memorandum setting out his concerns is his conviction
that coercive interrogations undermine American and military values.
This is Mora’s description of the meeting at which NCIS Director Da-
vid Brant and chief NCIS psychologist Michael Gelles briefed Mora and
his colleagues about alleged abuses at Guantánamo Bay: “The general
mood in the room was dismay. I was of the opinion that the interroga-
tion activities described would be unlawful and unworthy of the mili-
tary services, an opinion that the others shared.”17 Mora is even clearer
about his opposition later in the memorandum: “Even if one wanted
to authorize the U.S. military to conduct coercive interrogations,
as was the case in Guantánamo, how could one do so without pro-
foundly altering its core values and character? Societal education and
military training inculcated in our soldiers American values adverse to
mistreatment. Would we now have the military abandon these values
altogether? Or would we create detachments of special guards and in-
terrogators who would be trained and kept separate from the other
soldiers, to administer these practices?”18
There is further evidence that Mora’s reaction to the attempts by
lawyers to justify enhanced interrogations was rooted in his vision
of the law and the fundamental human goods it serves. Jane Mayer’s
162 Chapter Seven
profile of Mora in the New Yorker is clear on this point. When Mayer
asked Mora about the supposed distinction between torture and cruel
or degrading treatment, he responded:
To my mind, there’s no moral or practical distinction. . . . If cruelty is no

longer declared unlawful, but instead is applied as a matter of policy, it al-
ters the fundamental relationship of man to government. It destroys the
whole notion of individual rights. The Constitution recognizes that man
has an inherent right, not bestowed by the state or laws, to personal dignity,
including the right to be free of cruelty. It applies to all human beings, not
just in America—even those designated as “unlawful enemy combatants.”
If you make this exception, the whole Constitution crumbles. It’s a trans-
formative issue.19
If we recall David Luban’s work, discussed in chapter 4, we might

characterize Mora’s repugnance toward abusive interrogation as the
response of a virtuous professional who has internalized a view of the
legal system as a bulwark against tyranny. As Luban puts the point, tor-
ture—and, Mora would add, cruelty—is a form of tyranny and is in-
compatible with dignity.
We are not accustomed to thinking of lawyers, or, for that mat-
ter, doctors or psychologists, as virtuous—at least not in the sense of
individuals who display a set of dispositions or habits of mind and
heart that support the common good. Yet if we adopt a virtue-ethics
approach to professional responsibility, we need to recover a sense of
how professional education and training can be a school of virtue. One
profession in which the connection between professional responsibility
and virtue is still central is the military, and it is to that connection that
I next turn.
Notes
1. Stout, Democracy and Tradition. See esp. chap. 9.
2. For a different account of virtue and professional responsibility, particularly
as regards military professionals, see Sherman, “Torturers and the Tortured.”
3. Oakley and Cocking, Virtue Ethics, 25.
4. Ibid., 75.
5. Ibid., 113.
6. Oakley and Cocking suggest the analogy with teaching, but I do not use their
example here. Instead, I offer my own.
7. Bok, Universities in the Marketplace, viii–ix.
9. Ibid., 86.
10. Ibid., 89.
11. Ibid., 90.
12. Miles, Oath Betrayed, 93–95.
13. Ibid.
14. Annas and Grodin, “Medicine and Human Rights,” 13.
16. In both cases there may also be serious questions about the detainee’s capac-
ity to make a competent decision.
tice.org/files/Mora%20memo.pdf, 5.
18. Ibid., 11.
19. Jane Mayer, “The Memo,” New Yorker, February 27, 2006, www.newyorker
.com/archive/2006/02/27/060227fa_fact.
Eight
The Day They Enter

Active Service
The Military Conscience
All Armies are expressions of the societies from which they arise.
The purposes for which armies fight and the ways in which they do
so reflect the values of the societies which send them to war in the
first place.
—Joel Rosenthal, “Today’s Officer Corps,” 104
To some extent, the officer’s behavior toward the state is guided

by an explicit code expressed in law and comparable to the canons
of professional ethics of the physician and the lawyer. To a larger
extent, the officer’s code is expressed in custom, tradition, and the
continuing spirit of the profession.
—Samuel Huntington, The Soldier and the State, 16
At several points in this study I have drawn attention to Alberto Mora’s

opposition to the EITs that were authorized for use with detainees at
Guantánamo Bay. I have cited Mora’s actions in part because his op-
position is well documented and for that reason is better known than
the actions of many other critics of the use of enhanced techniques.
But I have also noted Mora’s opposition because it appears to be rooted
in a military mindset that understands professional life inescapably to
involve service to American and military values. Mora never served in
the military, but his work as general counsel to the navy draws atten-
tion to the way the military responded to proposals to use abusive tech-
niques on detainees. We have looked at the responses of psychologists,
lawyers, and doctors to abusive interrogations; we turn in this chapter
to consider the response of military professionals.
The Day They Enter Active Service 165
We can begin by looking at the responses of the judge advocates

general (TJAGs) to the enhanced interrogations authorized by the
OLC. To understand the role of the TJAGs, we need to appreciate
the complicated structure of military legal authority. The position of
army TJAG is the oldest of the military legal establishment, but today
it is complemented by positions of general counsel both to the civilian
leadership of the services and to the DOD. In addition, the Office of
the Chairman of the Joint Chiefs of Staff has a legal counsel who is a
JAG officer.1 Although the DOD general counsel is the chief legal of-
ficer within the DOD, and his or her opinions have primacy when there
is conflicting legal opinion within the department, the general counsel
does not exercise control over the JAG Corps or the legal counsel for
the Office of the Chairman of the Joint Chiefs. As Lisa Turner says,
“Together, they support the constitutional framework that assigns re-
sponsibilities to both the President and Congress.”2
It was within this complex legal framework that debates about
enhanced interrogation took place among military lawyers. We have
seen that Mora, the general counsel for the navy, clashed with William
Haynes, the general counsel of the DOD, over the wisdom and legality
of using EITs. Where did the JAG Corps stand on the issue? The short
answer is that it stood with Mora in opposition to the use of EITs. We
know this because Mora brought his concerns to the navy judge advo-
cate general, who then also raised concerns with Haynes, as did the
other TJAGs with whom he consulted.
When Haynes set up the working group to review the proposal for
using enhanced techniques, it included staff members of the TJAGs,
and when the working group prepared a draft report, it sought input
from the TJAGs on the draft report. Turner’s account of what hap-
pened at that point is notable.
TJAGs and Mora lodged their deep concerns about the working group legal
analysis and absence of balanced policy considerations orally and by email
to Walker [the chair of the working group]. When that approach failed,
TJAGs followed up with memos to Walker. They then met with DOD/GC
[Haynes] to express their concerns.
TJAGs and/or their staffs then met with their Service chiefs. The Joint
Chiefs met on the issue in a Pentagon conference room called “the Tank.”
Around this time, DOD/GC met with Secretary Rumsfeld and provided
166 Chapter Eight
him with the final working group report. On April 16, 2003, the Secretary
authorized some of the interrogation techniques and instructed that fur-
ther requests for expansion should come to him. TJAGs were not given the
final working group report or an opportunity to formally concur or non-
concur. Haynes told at least one TJAG that Secretary Rumsfeld had seen
TJAG comments, the report would go no further, and DOD would return
to standard techniques. Until the report became public 14 months later,
TJAGs and Navy GC believed the working group report had never been
finalized. TJAGs did not know about later Secretary-approved requests for
expanded techniques.3
It is perhaps not surprising that the TJAGs were not asked to concur
or nonconcur with the final report of the working group, for it seems
clear that they would have rejected the recommendation of the group
that EITs be used on detainees.
We do not know for sure what their position would have been on
the final report, but we do know their responses to the draft report,
and they were not positive. The memoranda cited by Turner are unani-
mously and unequivocally opposed to the recommendation that EITs
be used on detainees. The comments of the deputy JAG for the air
force, Major General Jack Rives, capture the sentiment of the other
TJAGs. Rives writes: “Several of the more extreme interrogation tech-
niques, on their face, amount to violations of domestic criminal law
and the UCMJ [Uniform Code of Military Justice] (e.g., assault). Apply-
ing the more extreme techniques during the interrogation of detainees
places the interrogators and the chain of command at risk of crimi-
nal accusation domestically.” Furthermore, Rives argues, US military
forces are trained from “the day they enter active duty” to abide by the
UCMJ and the Geneva conventions, and to give legal sanction to the
EITs completely undermines the moral core of military training and
ethics.4
Although Rives and the other JAG officers made it clear that they
acknowledged the DOD general counsel’s authority to render a legal
judgment about DOD policy on enhanced interrogation, they also
made it clear that they are responsible for legal judgments about the
standards to which soldiers will be held under the UCMJ. For example,
in his memorandum to the chair of the working group detailing his res-
ervations about the draft report, Rear Admiral Michael Lohr advocated
for a remarkable addition to one section of the report. In effect, he

suggested that the report make clear that soldiers would be held ac-
countable to the UCMJ, whatever the secretary of defense authorized.
He proposed the following addition to the draft report: “Rewrite 3rd to
last and penultimate sentences [of p. 75] to read ‘The working group
believes use of technique 36 would constitute torture under interna-
tional and U.S. law and, accordingly, should not be utilized. In the event
SECDEF decides to authorize this technique, the working group be-
lieves armed forces personnel should not participate as interrogators as
they are subject to UCMJ jurisdiction at all times.’”5
Without a feel for the role responsibilities of TJAGs, this recommen-
dation might suggest a kind of insubordination. After all, Lohr’s sugges-
tion is only a slightly veiled recommendation that military personnel
not follow orders that might be given by the secretary of defense. But
I believe this interpretation misconstrues the responsibilities of TJAGs
and the JAG Corps more generally. TJAGs “are general and flag officers
who have served for decades in uniform as judge advocates at many
levels of command.”6 They have fundamental responsibility for the
development of military law and for the application of the UCMJ in
particular cases. For that reason, one of their central obligations is to
interpret and apply the law of war, even when doing so involves pro-
viding unwelcome advice to military commanders. Obviously, the in-
dependence of TJAGs is of utmost importance. Indeed, Congress was
sufficiently concerned about the independence of the TJAGs and the
JAG Corps that their independence is mandated by statute. Section
3037(e) of title 10 of the United States Code reads, “No officer or em-
ployee of the Department of Defense may interfere with—(1) the abil-
ity of the Judge Advocate General to give independent legal advice to
the Secretary of the Army or the Chief of Staff of the Army; or (2)
the ability of judge advocates of the Army assigned or attached to, or
performing duty with, military units to give independent legal advice
to commanders.”
Military Professionalism and Civilian Authority

Although mandated by federal law to provide independent oversight of
military units and to provide Congress with independent advice on mil-
itary law, the JAG Corps has been accused of overstepping its authority
168 Chapter Eight
and usurping civilian control of the military. Interestingly, John Yoo is

one scholar who has advanced this position. The article in which Yoo
develops this argument is written with Glen Sulmasy, a judge advocate
with the US Coast Guard.7 Although I will focus on their comments
regarding the JAG Corps and the war on terror, it is important to note
that they articulate a position about civilian-military relations more
generally.8 For example, they are concerned about the role of officers,
and not just JAG officers, in publicly opposing the policy of civilian
leaders. Among other examples, they cite the call from retired officers
for the resignation of Secretary of Defense Donald Rumsfeld, the tes-
timony of General Eric Shinseki before Congress that troop strength
in Iraq was insufficient, and an on-the-record interview with General
Colin Powell in which he opposed military intervention in Bosnia. Nev-
ertheless, the focus of their concern is the role of military lawyers in
the war on terror.
In developing an account of civilian-military relations, Sulmasy and
Yoo draw on rational choice theory and offer what they describe as a
“principal-agent” model. According to this model, the best way to un-
derstand the interaction among various constituencies in military af-
fairs is to think of the interaction between a principal actor and those
designated to serve as agents of the principal. The problem, say Sul-
masy and Yoo, is that “the relationship is strategic—each actor makes
decisions to maximize its own interests, taking into account its under-
standing of the interests and likely responses of the other.”9 The trou-
ble is thus that designated agents will pursue their own interests and
not those of the principal.
When this model is applied in the context of civilian-military rela-
tions, we find numerous points at which the interests of the agents—
namely, the military—may conflict with those of the principal—that
is, the president or Congress. Disagreements about “when or how to
use force, force structure, strategy, tactics, and the rules governing the
military,” not to mention a desire for increased autonomy, may lead
the agents to seek their preferred position at the expense of the prin-
cipal.10 In effect, the theory posits a strictly calculative model of princi-
pal-agent interaction that reduces military decision making to narrow
self-interest.
The language Sulmasy and Yoo use here is striking. “We would ex-
pect the military to follow civilian policy,” they write, “when the payoff
to do so is greater than the payoff from following its own preferences,

minus the expected cost of the discovery of its shirking.”11 The model
is thus also predictive. Military resistance to civilian preferences will
increase when (1) the differences between civilian and military prefer-
ences increase, (2) resistance is unlikely to be discovered, and (3) the
likelihood of significant punishment is small.
With this theory in place, Sulmasy and Yoo attempt to explain the
actions of JAG officers in the war on terror. They suggest, for example,
that one response of agents who disagree with principals is to attempt
to exploit divisions within the principal. The fact that JAG attorneys
went to Congress to raise concerns about the establishment of military
commissions is, they say, a classic manifestation of principal-agent con-
flict. Similarly, Sulmasy and Yoo reduce JAG Corps concerns about in-
ternational law to a calculated strategy of weakening the principal. As
they see it, the appeal to international law by JAG officers was another
way military officers sought allies in opposing civilian authority. They
adopted an internationalist perspective on the status of enemy combat-
ants “because this would allow them more autonomy.”12
No one familiar with civilian-military relations would deny that the
bureaucratic infighting for power and resources in the military can be
intense. Nor can the prospect of the military making a calculated effort
to press its own priorities be easily dismissed. Nevertheless, the sugges-
tion that JAG officers are concerned about violations of international
law and the UCMJ simply as a means to greater power and autonomy
is particularly cynical.
Sulmasy and Yoo present their principal-agent model as an alterna-
tive to Samuel Huntington’s theory of civilian-military relations set
out in The Soldier and the State. They argue that Huntington’s analysis
of civilian-military relations in terms of the level of external threat in
combination with the political-ideological and constitutional nature
of a given society is inadequate to explain civilian-military relations in
the United States, both during and after the Cold War. Whether or not
they are right about the explanatory force of Huntington’s model, they
miss entirely the centrality of Huntington’s insistence on the profes-
sional nature of the officer corps. Huntington could scarcely be called
a utopian thinker, but he avoided the cynicism of Sulmasy and Yoo by
attending to the professionalization of the officer corps. His account
of military professionalism thus offers an alternative to the cynicism of
170 Chapter Eight
the principal-agent model of civilian-military relations; it also offers a

far better explanation of the actions of the JAG Corps.
Huntington begins his classic work with a chapter titled “Officer-
ship as a Profession.” According to Huntington, under any standard
definition of a profession, military officers would count as profession-
als. They possess specialized knowledge and skill; they pursue central
social goods for reasons connected to professional goals rather than
monetary rewards; and they have a sense of corporate self-identity as
separate from laymen.13 Like other professionals, military officers have
a professional code of conduct that is recognized by the state. Indeed,
says Huntington, “to some extent the officer’s behavior toward the
state is guided by an explicit code expressed in law and comparable to
the canons of professional ethics of the physician or the lawyer.”14
Not only do we see the inculcation of a code in the education of
an officer, we see the formation of a military mindset. Huntington’s
account of this mindset is compelling. The first thing to notice about
this mindset is that it is organically connected to the goals of a military
professional. In Huntington’s words, “The military mind consists of the
values, attitudes, and perspectives which inhere in the performance of
the professional military function and which are deducible from the
nature of the function.”15 For our purposes, the teleological nature of
this account is more important than Huntington’s view that the mili-
tary mindset includes a fundamental pessimism about human nature,
an anti-individualist ethos of service, or a conviction that the state is
the basic unit of political organization.16 The real significance of Hun-
tington’s account of the professionalization of the officer corps is the
recognition that an officer serves the state by serving values set out in
the law and in codes of military conduct.
Military Professionals Take a Stand

If we return to the actions of JAG officers with Huntington’s account
of military professionalism in mind, we see an alternative explanation
that is far more positive than that offered by Sulmasy and Yoo. Rather
than a crass play for greater power and autonomy, the actions of the
officers in opposing the working group report assembled by the civilian
lawyers at the DOD and based on Yoo’s legal analysis appear to have
been an effort to maintain professional integrity in the face of actions
that would erode fundamental military values. A commitment to mili-

tary professionalism and the state such professionalism serves thus
mandated vigorous opposition to the use of EITs.
Ironically, in one sense, Sulmasy and Yoo succumb to what Hunting-
ton thought of as a liberal mistake—what he referred to as the fusionist
theory of civilian-military relations. According to fusionist theory, with
the post–World War II commitment to a large standing army, it became
impossible to distinguish between political and military functions at the
highest levels of government. Fusionist theory was attractive to liberals
who were suspicious of military power, says Huntington, because if
functional military expertise could be downplayed, military power in
decision making could be muted.
We see very much the same sort of fusionist approach from Sul-
masy and Yoo when they set out to explain why civilian and military
leaders disagreed so vehemently about the use of EITs. If postwar lib-
erals sought to reduce the power of the military by requiring its lead-
ers to frame their decisions in terms of civilian concerns of social and
economic policy, Sulmasy and Yoo attempt to diminish military power
by arguing that in a post-9/11 context civilian leaders must reframe
traditional military law. The laws of war, they reason, “were drafted
primarily to deal with two types of armed conflict—wars between na-
tion-states, and internal civil wars.” But terrorist attacks by nonstate
actors introduce “a different type of armed conflict, one between a na-
tion-state and an international terrorist organization with international
reach and the ability to inflict levels of destruction previously only in
the hands of states.” The upshot is that traditional military expertise
is not particularly relevant to addressing the new situation. “Deciding
what rules to apply to a new type of armed conflict,” they conclude,
“inherently calls for judgments that are based far more on policy prefer-
ences and balancing of costs and benefits [than on traditional military
expertise].”17
In suggesting that Sulmasy and Yoo deploy a fusionist strategy in
an effort to cut out military professionals from decisions about how to
fight the war on terror, I do not mean to suggest that they are wrong
that nonstate terrorist groups require us to rethink the laws of war and
counterterrorism tactics.18 Instead, I wish to draw attention to the fact
that the deliberations about the use of EITs intentionally bypassed the
military professionals whose expertise and core value commitments
172 Chapter Eight
would have greatly enriched the decision-making process. More im-

portantly, however, it is necessary to highlight how the principal-agent
model obscures the professionalism of the officer corps.
This is, in fact, precisely what Huntington’s account would suggest,
because fusionist theories in his view effectively erode the profession-
alism of the military. On this view, if JAG officers sought to prevent
civilian leaders from redefining the laws of war, the reason for their ac-
tions had more to do with commitments to the regulative ideal of their
profession than with a calculative grab for power.
Let us return to the process by which the EITs were approved. As
we saw in chapter 3, when the initial interrogations of high-value de-
tainees did not yield immediate intelligence, both the CIA and army
commanders at Guantánamo Bay sought approval to use EITs. The
memoranda we discussed at length in chapter 3 focused on the request
by the CIA for guidance on the legality of coercive interrogations, but
the OLC memoranda ultimately served as the basis for DOD approval
of the use of EITs by military interrogators. The Yoo memorandum
that the working group used to develop its position was essentially a
repackaging of the Bybee memoranda. The final DOD working group
report, for example, contained much of the analysis found in the in-
terrogation memoranda, including reliance on the notion of specific
intent and appeals to presidential powers and a necessity defense, if
charges were ever to be brought against interrogators. And it reached
essentially the same conclusions.
The problem in both instances is that the legal analysis was pre-
pared with virtually no consultation with anyone having expertise in
international or military law. As we saw, the top military lawyers were
cut out of the process of consultation when the final report was being
prepared. And, as Jane Mayer documents in her book The Dark Side,
this was a consistent pattern in the aftermath of 9/11. For example,
as the Bush administration deliberated about how to handle captured
terrorist suspects legally, there was little in the way of consultation. An
interagency process was established to address the legal issues, but the
interagency group played almost no role in the actual development
of administration policy. Mayer points out that the process of policy
formation with regard to detainees was highly unusual and cloaked in
secrecy. It excluded the most experienced military lawyers and was or-
chestrated by Vice President Dick Cheney and his legal counsel David
Addington, neither of whom were either veterans or experts on mili-

tary or international law.19
As evidence that key figures were cut out of the deliberations,
Mayer notes that neither Condoleezza Rice nor Colin Powell knew that
the administration planned to create military commissions to try the
terrorists before the decision had already effectively been made. Nei-
ther did the TJAGs. Attorney General Ashcroft learned of the plan only
two days before it was announced. Although John Yoo, then with the
OLC, had written a confidential memorandum on military commis-
sions for the administration, he had done so without informing Ash-
croft. Indeed, according to Mayer, Addington had been emphatic about
not using the interagency process. “Fuck the interagency process,” one
White House colleague recalled him saying. To another colleague he
said, “Don’t bring the TJAGs into the process. They aren’t reliable.”20
Once the TJAGs learned of the administration’s plans, they argued
for reversing course. In Mayer’s words, the “uniformed military lawyers
were galvanized by the order into taking the first steps in what would
become a remarkable role as defenders of America’s honor and its rule
of law against what they saw as illegitimate and ruinous incursions by
the Bush Administration’s political appointees.”21
What Sulmasy and Yoo see as a power grab by military lawyers,
Mayer views as a principled effort to safeguard the values to which mili-
tary professionals must be committed. Sulmasy and Yoo complain that
the JAG Corps encouraged challenges to military commissions by ci-
vilian lawyers and that, when the administration sought congressional
grounding for military commissions after the Supreme Court ruled in
Hamdan v. Rumsfeld that the administration’s version of the commis-
sions was incompatible with congressional authorization of the UCMJ,
the TJAGs and other JAG officers testified against the administration’s
proposal.
Obviously, the actions of the JAG Corps are open to competing in-
terpretations, but it is worth noting in assessing alternative explanations
that there was a clear effort to bypass the usual consultation process by
which military professionals would have been able to raise any con-
cerns they might have about EITs or military commissions. Moreover,
as Turner points out, “prior to confirmation, Congress requires TJAGs
and three- and four-star nominees to take an oath swearing to provide
Congress their personal opinions on military matters when asked, even
174 Chapter Eight
those opposing administration policy.”22 Given these facts, Sulmasy and

Yoo’s interpretation of the actions of the TJAGs appears strained.
Their position might be stronger if the concerns raised by the TJAGs
and JAG Corps generally were trivial or unfounded, but that does not
appear to have been the case. Consider, for example, JAG opposition
to the use of military commissions. As we saw, when President Bush
originally created the commissions by executive order, the TJAGs were
not consulted in advance, and when they learned of the commissions
they were opposed to them. For the most part, JAG Corps reservations
had to do with the way the commissions departed from the procedures
and rules of evidence that are in place for military courts-martial. In do-
ing so, the commissions compromised the integrity of military justice
to which the JAG Corps were, as professionals, committed. And these
were precisely the concerns raised by the US Supreme Court when it
struck down the original commissions in Hamdan v. Rumsfeld.
The Government’s objection that requiring compliance with the court-
martial rules imposes an undue burden both ignores the plain meaning of
Article 36(b) and misunderstands the purpose and the history of military
commissions. The military commission was not born of a desire to dis-
pense a more summary form of justice than is afforded by courts-martial;
it developed, rather, as a tribunal of necessity to be employed when courts-
martial lacked jurisdiction over either the accused or the subject matter.
Exigency lent the commission its legitimacy, but did not further justify the
wholesale jettisoning of procedural protections. That history explains why
the military commission’s procedures typically have been the ones used by
courts-martial. That the jurisdiction of the two tribunals today may some-
times overlap does not detract from the force of this history; Article 21 did
not transform the military commission from a tribunal of true exigency
into a more convenient adjudicatory tool. Article 36, confirming as much,
strikes a careful balance between uniform procedure and the need to ac-
commodate exigencies that may sometimes arise in a theater of war. That
Article not having been complied with here, the rules specified for Ham-
dan’s trial are illegal.23
After the Supreme Court struck down the original version of the
commissions, President Bush sought and received congressional autho-
rization for revised military commissions, about which the JAG Corps
also raised concerns. The Supreme Court’s worry that the commis-
sions would serve as a vehicle for a more summary form of justice ap-
pears to have been prescient, for when detainees were finally brought
to trial under this framework, the result was deeply troubling.
Consider the case of Mohammed Jawad. We know the details of
this case because both the JAG Corps officer who defended him and
the original chief prosecutor of Jawad have written about it.24 Their
accounts document a system that was flawed in precisely the way the
military professionals had predicted. Jawad was arrested in Afghanistan
when he was fourteen or fifteen years old. He was accused of throw-
ing a grenade into a jeep, an attack that injured two US servicemen
and their interpreter. He was arrested and interrogated by Afghan po-
lice, who apparently threatened to kill him or members of his family
if he did not confess. He signed a confession with his thumbprint, even
though he was illiterate and did not speak the language in which the
confession was written. When he was turned over to US personnel,
he was again subjected to harsh interrogations and again confessed,
though the details of the two confessions were markedly different.
About two months after his arrest, in February 2003, he was transferred
to Guantánamo Bay.
The logs of detainee interrogations indicate that he was subjected to
abusive treatment, including sleep-deprivation techniques, euphemisti-
cally referred to as the “frequent flyer” program. We know from the rec-
ords that were kept of his treatment that between May 7 and May 20,
2004, Jawad was moved from one cell to another 112 times, “an average
of one relocation every two hours and fifty minutes for two weeks.”25
Although he was arrested in December 2002, he did not go before a
combatant status review tribunal until October 2004. Jawad was not
allowed legal counsel at that hearing, and he did not have access to a
lawyer until 2007, five years after he was arrested. In January 2008, the
case was referred to trial by military commission.
Within months of his being assigned a lawyer, the case against Jawad
was in shambles. “By November 2008,” David Frakt, Jawad’s defense
counsel, writes, “the case against Jawad had disintegrated: the lead
prosecutor had resigned, and the military judge had suppressed the
government’s primary evidence and rejected its entire theory of the
crime.”26 When Jawad later petitioned for habeas corpus, the former
176 Chapter Eight
prosecutor in the case, Darrel Vandeveld, provided a declaration of

support for Jawad. Vandeveld wrote:
I offer this declaration in support of Mohammed Jawad’s petition for ha-
beas corpus. I was the lead prosecutor assigned to the Military Commis-
sions case against Mr. Jawad until my resignation in September 2008. It is
my opinion, based on my extensive knowledge of the case, that there is no
credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. cus-
tody or his prosecution by military commission. There is, however, reliable
evidence that he was badly mistreated by U.S. authorities both in Afghani-
stan and at Guantanamo, and he has suffered, and continues to suffer, great
psychological harm. Holding Mr. Jawad’s [sic] for over six years, with no
resolution of his case and with no terminus in sight, is something beyond
a travesty.27
Vandeveld is not alone in concluding that the legal situation of detain-

ees has been badly handled. Six other military commission prosecutors
have resigned. In each case, issues of professional integrity appear to
have been the reason for stepping aside.
I have suggested that the JAG officer corps was opposed to the use
of EITs and the prosecution of detainees in military commissions be-
cause they saw both as a threat to military values and the rule of law,
which they were professionally committed to upholding. At least with
respect to the use of military commissions, however, my account of
JAG actions must also take note of the fact that military lawyers served
as prosecutors and judges in these cases. After all, not every military
lawyer resigned or asked to be transferred, and these tribunals were
military commissions. To be sure, military lawyers were involved in all
aspects of the commissions, but it should also be pointed out that the
commissions were decidedly unmilitary. Scott Horton puts the point
trenchantly. “They had the appearance of being ‘military,’” Horton
writes, “because the courtroom scene on which all the cameras focused
were [sic] filled with men and women in uniform.” Nevertheless, be-
hind the scenes, “the puppet masters were pulling the strings. And the
puppet masters were suspiciously partisan political figures.”28
Horton cites two pieces of evidence to support his claim that the
system was set up to serve political ends and not the administration
of justice. First, the convening authority for the military commissions,
Susan Crawford, was not a military officer but a political appointee
favored by Vice President Cheney’s office. Second, the reporting struc-

ture put in place by the secretary of defense had all parties reporting
to William Haynes, the civilian general counsel at the DOD. Horton’s
conclusion is, once again, provocatively but not unreasonably put:
The cumulative effect of these changes masterminded by Haynes is plain
enough: the already very obvious threads attached to the commission par-
ticipants were replaced with some crude hemp rope. It was obvious to all
observers who was calling the shots. And it was plainly illegal and unethical.
Professional rules require the defense counsel, prosecutor, and judges to ex-
ercise independent professional judgment. Moreover, the Military Commis-
sions Act of 2006 guarantees the professional independence of these actors
in the process. The command structure crafted by Haynes was plainly de-
signed to achieve the political subordination of the JAGs, defying the MCA’s
guarantee of independence.29
Arguably, it was a concern about an independent and fair military jus-

tice system that led JAG officers to oppose both EITs and a system of
military commissions. The fact that the military commissions system
allowed self-incriminating evidence obtained through coercive inter-
rogation to be introduced at trial perhaps captures the core worry of
military lawyers. Sulmasy and Yoo are not wrong that there was a sig-
nificant power struggle in play as the JAG Corps fought what they saw
as civilian efforts to undermine a long and honorable tradition of mili-
tary justice. Yet, in depicting this struggle in terms of rational choice
theory, with each side calculating its own self-interest, Sulmasy and Yoo
miss entirely the way in which JAG opposition was rooted in a profes-
sional ethos profoundly at odds with the whole notion of individual
self-interest.
Huntington’s account of the military professional’s code of ethics
rooted in custom, tradition, and the spirit of military service captures
the motivation for military opposition to EITs far better than the the-
ory of rational self-interest offered by Sulmasy and Yoo. As Horton has
written, “Even most critics concede the professionalism and integrity
of the military lawyers who [were] assigned to the military commis-
sions system as judges, prosecutors and defense counsel. Their profes-
sionalism and integrity are not an issue.”30
In the end, the view of David Frakt, Jawad’s defense counsel,
seems closest to the truth when he notes the moral paradox that was
178 Chapter Eight
Guantánamo Bay. Despite the fact that the majority of the 774 detain-
ees at Guantánamo were wrongly imprisoned and mistreated, military
professionals took a principled stand against this treatment. As Frakt
puts it, “The Jawad case epitomizes the worst excesses of the war on
terrorism—the wrongful imprisonment and torture of an innocent
teenager in a legal black hole, followed by his attempted prosecution
for an invented war crime using coerced confessions. But the case
also represents what is best about America. The Pentagon assigned, at
taxpayer expense, three military officers to defend him, and then pro-
moted two of us, despite our vigorous and outspoken criticism of the
government’s actions.”31
In the introduction I suggested that examining how professionals
responded to the war on terror provides one barometer of how demo-
cratic traditions are faring in the war on terror. If David Frakt is correct,
the answer is somewhat mixed. We turn in the next chapter to examine
this question in more detail.
Notes
1. This account of the military legal structure is taken from Turner, “Detainee
Interrogation Debate.”
2. Ibid., 41.
3. Ibid., 45.
4. Jack L. Rives to secretary of the air force general counsel, memorandum, Feb-
ruary 5, 2003, available on the Washington Research Library Consortium Aladin
Research Commons website, http://dspace.wrlc.org/doc/bitstream/2041/70978/
00601_030205_001display.pdf.
5. Rear Admiral Michael F. Lohr, judge advocate general, “Working Group Rec-
ommendations Relating to Interrogation of Detainees,” memorandum, February
6, 2003, in “JAG Memos—Introduced into Congressional Record by Sen. Lindsey
Graham (R-SC) on July 25, 2005,” available at ImpeachforPeace.org, http://im
peachforpeace.org/evidence/data/jag-memos.pdf.
6. Turner, “Detainee Interrogation Debate,” 41.
7. Sulmasy and Yoo, “Challenges to Civilian Control.”
8. For a critique of Sulmasy and Yoo’s position that highlights their view of
presidential powers, see Hansen, “Understanding the Role of Military Lawyers in
the War on Terror.”
9. Sulmasy and Yoo, “Challenges to Civilian Control,” 12.
10. Ibid., 14.
11. Ibid., 16.

12. Ibid., 19–20.
13. Huntington’s account of professions is clearly what I have defined as a so-
cial-trustee model.
14. Huntington, Soldier and the State, 16.
15. Ibid., 61.
16. I do not mean to suggest that I disagree with Huntington’s characterization
of the substance of this mindset. In fact, it seems to me roughly on target.
17. Sulmasy and Yoo, “Challenges to Civilian Control,” 22.
18. One such effort can be found in Cook, “Ethical Issues in Counterterrorism
‘War.’”
19. Mayer, Dark Side, 80.
20. Ibid., 80, 88.
21. Ibid., 88.
22. Turner, “Detainee Interrogation Debate,” 42.
23. Hamdan v. Rumsfeld, 548 U.S. 557, 625 (2006).
24. I rely here on the account provided by David Frakt, Jawad’s defense counsel
from the Office of Military Commissions. Frakt was a US Air Force JAG officer. See
Frakt, “Mohammed Jawad and the Military Commissions of Guantánamo.” The
account of the chief prosecutor in the case, who in fact resigned because of his
concerns, can be found in his declaration in support of dismissing the case against
Jawad. See “Declaration of Lieutenant Colonel Darrel J. Vandeveld, September
22, 2008” available on the website of the Center for the Study of Human Rights
in the Americas, University of California at Davis, http://humanrights.ucdavis
.edu/projects/the-guantanamo-testimonials-project/testimonies/testimonies-of
-prosecution-lawyers/declaration-of-lieutenant-colonel-darrel-vandeveld-septem
ber-22-2008. Vandeveld also executed a declaration in support of Jawad’s habeas
corpus petition. I cite this declaration below.
25. Frakt, “Mohammed Jawad,” 1397.
26. Ibid., 1371.
27. Declaration of Lieutenant Colonel Darrel J. Vandeveld in support of Mo-
hammed Jawad’s habeas corpus petition, January 12, 2009, available on the website
of the American Civil Liberties Union, www.aclu.org/pdfs/safefree/veveld_decla
ration.pdf.
28. Horton, “Great Guantánamo Puppet Theater.”
29. Ibid.
30. Ibid.
31. Frakt, “Mohammed Jawad,” 1409.
Nine
Lessons Learned
Dignity and the Rule of Law
How we interrogate “post-9/11” detainees is the fundamental ques-

tion in balancing the inherent tension of national security consider-
ations against individual civil and political rights. More significantly,
the interrogation measures we adopt define who we are as a society.
—Amos Guiora, Constitutional Limits on Coercive Interrogation, ix
Americans, believing themselves to stand proudly for the rule of law

and human rights, have become for the rest of the world a symbol
of something quite opposite: a society in which lawbreaking, ap-
proved by its highest elected officials, goes unpunished.
—Mark Danner, “After September 11: Our State of Exception,”
New York Review of Books, October 13, 2011
I began this study by noting the threat that terrorism poses to demo-
cratic institutions and by asking how the United States has fared in re-
sponding to that threat. The concrete example for approaching these
matters has been the issue of coercive interrogations, for as Amos Gui-
ora suggests, how a society handles interrogation in the face of terror-
ist threats tells us a lot about the moral compass of that society. When
suspected terrorists are in custody, at least two values may be deeply at
odds. We have a moral responsibility to safeguard the lives of innocent
civilians by maintaining national security, and we have an obligation
not to reduce fellow human beings to nonhuman status, even if we
would describe what they have done as inhuman. If the question of
how a democratic society handles issues of interrogation is a barom-
eter of its success in responding to terrorism, how is the United States
doing?
Lessons Learned 181
I believe the answer to this question is that the US response has been
decidedly mixed. To explain why I draw this conclusion it is useful to
have a schema of interrogation techniques. Following Guiora, I suggest
that harsh interrogation techniques can be divided into three kinds:
coercive, abusive, and torturous.1 The point of distinguishing three
categories of interrogation is, of course, to provide an answer to the
question of how to balance human rights and national security when
interrogating suspected terrorists. In my view, coercive interrogation is
a morally and legally acceptable form of interrogation; abusive inter-
rogation and interrogation that involves torture are not.
Here it is useful to be concrete. Suppose we turn to the techniques
set out in Army Field Manual (FM) 34-52, the 1992 army document that
spells out guidelines for “intelligence interrogation,” and to the ten EITs
that the classified Bybee memorandum addressed in August 2002. How
should these various techniques be categorized? We can begin with FM
34-52. The manual covers interrogation in great detail, with chapters
on everything from the general mission of military intelligence units
and the structure of such units to the handling of documents produced
through intelligence operations, including interrogation. Chapter 3 of
the manual covers the actual techniques of interrogation. It identifies
roughly a dozen general interrogation strategies, with some variations
within each category. The categories are direct, incentive, emotional,
fear, pride and ego, futility, we know all, file and dossier, establish your
identity, repetition, rapid fire, silence, and change of scene.
The coercive nature of all interrogation can be seen in the fact that
even in the most innocuous of these techniques—namely, a direct ap-
proach in which the interrogator simply asks for the information he
wants—the subject being interrogated is powerless and vulnerable. The
detainee does not necessarily know where he is; he does not know what
will happen if he refuses to answer; and even if he answers questions
truthfully, he may not be believed. Nevertheless, not all techniques are
the same. Asking a detainee a direct question is very different from
what the manual refers to as a “Fear-Up (Harsh)” approach. Accord-
ing to the manual, “in this approach, the interrogator behaves in an
overpowering manner with a loud and threatening voice. The inter-
rogator may even feel the need to throw objects across the room to
heighten the source’s implanted feelings of fear. . . . This technique is
182 Chapter Nine
to convince the source he does indeed have something to fear; that he

has no option but to cooperate.”2
The fact that questioning a detainee is coercive and may be harsh,
however, does not mean it is morally or legally prohibited. Indeed, all
the techniques set out in FM 34-52 are approved by the military in part
because they do not violate the Geneva conventions or the UMCJ. The
preface to the manual is clear about the necessity of restraint. “These
principles and techniques of interrogation,” the manual reads, “are to
be used within the constraints established by the following”:
• The Uniform Code of Military Justice (UCMJ)

• Geneva Convention for the Amelioration of the Wounded and Sick in
Armed Forces in the Field of August 12, 1949, hereinafter referred to as
GWS
• Geneva Convention Relative to the Treatment of Prisoners of War of
August 12, 1949, hereinafter referred to as GPW
• Geneva Convention Relative to the Protection of Civilian Persons in
Time of War of August 12, 1949, hereinafter referred to as GC.3
Article 3, which is common to all three of these conventions, pro-

vides an indication of the basis upon which interrogations are to be
judged. It reads:
(1) Persons taking no active part in the hostilities, including members of

armed forces who have laid down their arms and those placed “hors de
combat” by sickness, wounds, detention, or any other cause, shall in all cir-
cumstances be treated humanely, without any adverse distinction founded
on race, colour, religion or faith, sex, birth or wealth, or any other similar
criteria. To this end, the following acts are and shall remain prohibited at
any time and in any place whatsoever with respect to the above-mentioned
persons: (a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages
upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all the judicial guarantees which are recognized as indispensable by civilized
peoples.4
Lessons Learned 183
From this and other articles in the conventions, it is clear that the
standard that is to guide the treatment of prisoners is one that safe-
guards the dignity and humanity of prisoners. Prisoners should not be
degraded; they should not be treated cruelly; and they should not be
physically or emotionally abused.
If we return to the techniques approved for use by FM 34-52, we
see why they are acceptable. They do not fundamentally compromise
the humanity of the prisoners interrogated. Prisoners may be manipu-
lated; their emotional vulnerabilities may be exploited; they may even
be generally intimidated. Nevertheless, their dignity as persons remains
intact.5
Dignity as a Standard
If respecting the basic dignity of persons is to be a useful standard, we
need at least briefly to explore the idea of dignity. This idea is of course
notoriously difficult to define, but we can begin by distinguishing be-
tween comparative and noncomparative conceptions of dignity.6 The
former is generally what is meant when advocates of the right to die
speak of wanting a dignified death. The idea behind the notion of a
dignified death is that one can lose the very capabilities that give life
meaning. In such a case, the argument goes, the quality of one’s life
has been so compromised compared to a life of optimal quality that
one might reasonably conclude that life is not worth living. Unbearable
pain, dementia, and a permanent vegetative state are all conditions that
have been said to be dehumanizing and thus undignified.
Although there are various ways to understand this comparative ac-
count of dignity, it is most typically understood in relation to the value
of autonomy, at least in an American context. The ability to make
one’s own decisions, to be able to set goals and then work toward those
goals, is so prized that when illness or injury strips us of the ability
to make autonomous choices, many conclude that some fundamental
human characteristic has been lost. The problem with an account of
dignity that rests on the importance of autonomy is that dignity is not
always correlated with autonomy. Young children have dignity without
having (full) autonomy. The elderly have dignity despite diminished au-
tonomy. We even believe that corpses should be treated with dignity,
184 Chapter Nine
when the possibility of autonomy is completely gone. A comparative

account of autonomy is thus often supplemented by a noncomparative
account.
A noncomparative account of dignity embraces the idea that hu-
mans have an intrinsic dignity that cannot be lost because it does not
rest on any set of capabilities or functions that might themselves be
lost. Noncomparative views are often religiously rooted, and at least
some writers argue that a religious grounding is the only plausible basis
for a noncomparative account of dignity. Gilbert Meilaender, for exam-
ple, has made this point explicitly. He writes, “It may be that we cannot
make good sense of an egalitarian and non-comparative understand-
ing of human dignity, to which our civilization has in many ways been
committed, if we abstract it entirely from the context of the religious
beliefs that formed it.” He continues, “I doubt, in fact, that there is any
way to derive a belief in the equal worth of every human being from
the ordinary distinctions in merit and excellence that we all use in some
spheres of life; it is grounded, rather, not in our relation to each other
but in our relation to God, from whom—to use a mathematical meta-
phor—we are equidistant.”7
I do not wish to explore the foundations of a noncomparative ac-
count of dignity, because even those who insist on the irreducible dig-
nity of humanity acknowledge that one can violate the dignity of a
person, despite the fact that the inherent dignity of the person is never
lost. In other words, it is the comparative conception of dignity that
is relevant to an assessment of interrogation techniques. And the idea
that is key here is that there is a threshold of respectful treatment of
a human being below which we may not go, if we are to respect the
dignity of the person being interrogated.
Let us acknowledge that an account of comparative dignity that
grounds dignity in autonomy does not exhaust everything we wish to
say about human dignity. Nevertheless, does it provide material for a
useful standard by which to evaluate interrogation techniques? I be-
lieve it does. If we understand human dignity to reside at least partly
in the cognitive capacities associated with the ability to make informed
choices and to reason prudentially in relation to those choices, then
actions that intentionally strip humans of those capacities can be said
to violate basic human dignity. The classical locus for this notion of
dignity is found in Kant’s conception of human beings as end setters.
Lessons Learned 185
Kant’s famous statement that we must never treat rational agents as

mere means to an end, but always as beings who have their own ends
or goals, nicely captures this view of dignity.8
Notice that this conception of dignity is in some ways counterintui-
tive, at least when applied to interrogation techniques. We are inclined,
for example, to treat techniques that cause pain more seriously than
those that are relatively painless. This is probably why many writers
appear to have little concern about the use of truth serum during inter-
rogations. However, on an autonomy-based account of dignity, it is a
mistake to equate pain with mistreatment, and the use of truth serum
is deeply problematic. Indeed, the use of drugs to elicit information
may be a prime example of abusive interrogation, precisely because it
is designed to overcome or bypass the will of the detainee completely.
Perhaps I can now be more precise. I said above that prisoners should
not be degraded, treated cruelly, or physically or emotionally abused,
and the reason has to do with the fact that such actions tend to reduce
a person to a mere means. Similarly, the reason that the techniques set
out in FM 34-52 are acceptable is that they do not reduce a detainee to a
mere means or strip the detainee of rational choice.
Can we say the same thing about the EITs authorized by the classi-
fied Bybee memorandum of August 2002? Ten techniques were consid-
ered in that document: (1) attention grasp, (2) walling, (3) facial hold,
(4) facial slap (insult slap), (5) cramped confinement, (6) wall standing,
(7) stress positions, (8) sleep deprivation, (9) insects placed in a confine-
ment box, and (10) the waterboard. Once again, we see a spectrum. All
are coercive, most are harsh, but are any abusive or effectively torture?
If the standard were respecting an autonomy-based account of the dig-
nity and humanity of the detainee, I would argue that, with reasonable
oversight, (1)–(6) could be used in ways consistent with this standard.
The use of stress positions or a confinement box with insects will fre-
quently, if not always, be abusive, and extensive sleep deprivation will
always be abusive and can rise to the level of torture. Waterboarding
falls into the category of torture. Effectively, the test suggested by the
Geneva norms can be formulated in terms of a question: Does the
technique strip the person of the basic dignity accorded to persons as
rational agents? Or with a more specific focus: Does the technique tar-
get the physical or psychological integrity of the detainee in a way in-
tended to break his or her will?9
186 Chapter Nine
The reason that techniques 1–6 are arguably acceptable is that none
of them fundamentally threatens a person’s basic dignity. No one de-
sires to be shoved against a wall, slapped, confined, or forced to stand
against a wall, but none of these things is intrinsically degrading or hu-
miliating, nor do they threaten physical or psychological integrity. By
contrast, the remaining techniques are all designed to compromise the
individuality and lucidity of a rational agent. They represent a potential
assault on personal identity that is intended to reduce the detainee to
raw animality.
Consider the role of sleep deprivation at Guantánamo Bay. As we
have seen, sleep deprivation was used so frequently with detainees, it
was jokingly referred to as the “frequent flier” program. It was used, for
instance, on Mohamadou Walid Slahi. A Senate Armed Services Com-
mittee report on the treatment of detainees issued in 2008 describes the
interrogation plan for Slahi. Sleep deprivation was clearly part of an
overall plan targeting Slahi’s physical and psychological integrity.
The January 16, 2003 memo also described techniques directed at breaking
down Slahi’s ego, including ridiculing him, making him wear a mask and
signs labeling him a “liar,” a “coward,” or a “dog.” The memo stated that
interrogators would also instruct Slahi to bark and perform dog tricks “to
reduce the detainee’s ego and establish control.” . . . 
The January 16, 2003 memo described shaving Slahi’s head and beard,
making him wear a burka, and subjecting him to strip search “to reduce
[his] ego by assaulting his modesty.” . . . 
The memo stated that Slahi would be denied the opportunity to pray
and described techniques to exploit “religious taboos,” such as using a fe-
male interrogator in “close physical contact.” The memo also stated that
interrogators would play music to “stress [Slahi] because he believes music
is forbidden” and that light in Slahi’s interrogation booth would be filtered
“with red plastic to produce a stressful environment.”
The January 16, 2003 memo indicated that JTF-GTMO [Joint Task
Force-Guantánamo Bay] interrogators planned to make use of a com-
pletely white room during Slahi’s interrogation “to reduce outside stimuli
and present an austere environment,” that interrogators would use a strobe
light in his interrogation booth to “disorient [Slahi] and add to [his] stress
level,” and that a hood would be placed on Slahi in the booth “to isolate him
and increase feelings of futility.”10
Lessons Learned 187
All of these techniques were combined with sleep deprivation in an

effort to compromise Slahi’s sense of identity through a systematic at-
tack on his connection with reality. That this regime succeeded in its
goal is evidenced by the fact that many who underwent this kind of
interrogation became psychotic.
In suggesting that sleep deprivation is abusive and not just coercive,
I part company with others who have called for moral and legal con-
straints on any interrogation regime. Guiora, for example, has pro-
vided a closely argued rationale for striking a balance between the need
for information that might protect national security and the protection
of human rights. He thus defends a regime of coercive interrogation
that is subject to strict oversight. Under Guiora’s system, the director of
national intelligence would have the power to approve specific interro-
gation plans, but the director would be “subject to legislative oversight,
active judicial review, and strict scrutiny by authorized members of the
executive branch.”11
While such a system of oversight would have been decidedly prefer-
able to the system at Guantánamo Bay, I disagree with Guiora about
the kinds of coercive techniques that may be used. For example, Gui-
ora would allow sleep deprivation, modulation of room temperature,
stress positions, the use of hooding, and the playing of loud, cacopho-
nous music.12 Any of these might possibly be justified as a one-time
technique designed to persuade a recalcitrant detainee to cooperate.
The problem is that, used as part of an interrogation regime, they are
likely to be used in combination (and more than once), and they target
physical and psychological integrity. Like solitary confinement, sensory
deprivation and sensory bombardment threaten personal integrity by
breaking a person’s will.13
If I am correct that sleep deprivation, stress positions, waterboard-
ing, and other techniques used at Guantánamo Bay are not just coer-
cive but also abusive and, in some cases, forms of torture, then one
would have to conclude that, at best, the US response to terrorism is
checkered. The techniques were not just used; they were approved for
use. And professionals of various sorts actively participated in the pro-
cess by which abusive techniques were authorized and implemented.
This fact is deeply disturbing. Even more troubling, however, is the way
in which these techniques were adopted. As we saw in our analysis of
the work of the OLC and of the opposition of military professionals to
188 Chapter Nine
the approval of these techniques, typical processes of analysis and re-

view were short-circuited. In that respect, a very small number of lead-
ers managed to gain extraordinary power and arguably circumvented
US and international law.
On the other hand, there is a sense in which the fight over EITs is
encouraging. At a time when the professions are often understood in
terms of a model of experts for hire, we have seen professionals in nu-
merous fields fight the use of EITs from within their professions and
in terms of the fundamental values to which they are committed in
their chosen professions. In opposing abusive interrogation techniques,
these professionals understood their actions as a form of service to the
common good. In this respect, the social-trustee model appears to be
alive and well, even if it is widely disparaged.
Drawing Lessons from Guantánamo Bay

The insistence of professionals that moral constraints be placed on the
means of fighting the war on terror and their efforts to implement such
constraints are important for another reason. They point to the value
of open deliberation in formulating policy and consultation where
transparency is not possible for reasons of security. While I disagree
with Alan Dershowitz’s recommendation that the United States set up
a system of judicial review that could authorize torture warrants, he
is surely right that one of the core democratic values at stake in re-
sponding to terrorism is democratic openness and accountability. The
term “transparency” is overused, but one thing professional opposi-
tion to abusive interrogation demonstrates is the danger of a lack of
transparency.14
Recall that one of the fundamental complaints, which we exam-
ined in chapter 8, that Sulmasy and Yoo make about military officers
is that they have offered their expert professional opinion to Congress
as Congress has sought to formulate policy about the war on terror.
They complain, for example, that during congressional hearings on the
Military Commissions Act, JAG Corps officers testified before Congress
against commission rules that would not allow defense counsel to see
the evidence against their clients. They argue that because the Bush
administration favored such commission rules, the actions of the JAG
officers undermined civilian control of the military.
Lessons Learned 189
On the contrary, I believe that one of the lessons that can be drawn
from our examination of the role of professionals in the war on ter-
ror is that secrecy and lack of consultation resulted in the implementa-
tion of deeply flawed policy. As we saw, the original OLC interrogation
memoranda were not widely circulated, at least not beyond a group of
administration officials who had already decided that abusive interroga-
tion was necessary. Yet the near universal rejection of the reasoning of
the memoranda when they became public, even by those lawyers who
supported EITs, suggests that secrecy and lack of consultation did not
serve the Bush administration well.
The same can be said about the original plans for the establishment
of military commissions. Almost no one outside a very small circle of
administration officials was consulted about the plan, not even the at-
torney general or the TJAGs. That the Supreme Court struck down the
original military commissions is thus not surprising. When Congress
authorized a revamped military commission system, it suffered from
the fact that even prosecutors were reluctant to work within a system
that relied on evidence obtained through abusive interrogations and
where decisions about prosecutions and plea bargains had more to do
with politics than with justice.
Problems with secrecy and lack of consultation also plagued the
APA’s initial efforts to respond to coercive interrogation. The presiden-
tial task force met in closed session and did not consult widely in de-
liberating about the role of psychologists in interrogation. When APA
members responded critically to the PENS report and sought to change
APA policy, the APA leadership resisted through the use of the rela-
tively closed bureaucratic structure of the organization.
The problem with the lack of transparency and consultation is not
just that a range of viewpoints and perspectives were neglected, but
that those engaged in practices that were arguably problematic did not
have to defend their actions publicly. We saw in chapter 6, for exam-
ple, that some writers have called for following a strategy of “naming
and shaming” in the absence of general mechanisms of accountability.
Whether or not one finds such a strategy useful, it nevertheless points
to the importance of accountability. Those like Dershowitz and Guiora
who have called for judicial oversight of interrogations are united in
their commitment to accountability, however much they may disagree
about what courts should allow.
190 Chapter Nine
There are other lessons to be drawn here. One has to do with the
importance of following established procedures. As we saw in the chap-
ters on the interrogation memoranda, there is evidence that Yoo and
Bybee did not follow the established patterns of OLC analyses and that
their work suffered as a result. Even more strikingly, however, we saw
that the review of the work of Yoo and Bybee conducted by the OPR
was deeply flawed because the OPR did not follow the analytical frame-
work that is supposed to govern the office’s reviews. In the case of mili-
tary commissions, when JAG officers opposed their establishment, at
least one reason was that the procedures for the new commissions did
not follow the standard procedures of military justice.
Another lesson concerns the dangers of not confronting problems
forthrightly and honestly. I have tried to be balanced in claiming that
despite the fact that the United States tortured and abused many de-
tainees in the years after September 2001, there is much to praise in
the work of professionals of various stripes who were called on by
their government to serve in the war on terror. Nevertheless, there is
a danger in focusing unduly on the positive. I believe that the effort to
highlight the good work of army medical personnel in the army sur-
geon general’s report led the authors of the report to make misleading
claims about the involvement of physicians in abusive interrogations.
We need to confront failures as well as to acknowledge and praise suc-
cesses. I rejected Dershowitz’s conclusion about the need for torture
warrants, but there is real merit in his willingness forthrightly to con-
front the difficult choices we face. There is also merit in acknowledging
when we make mistakes.
The lessons we might draw about the importance of openness, pro-
cedural regularity, accountability, and consultation might lead us to for-
mulate more explicit rules of professional responsibility, and this would
certainly be a welcome outcome. We saw, for example, that after the
lack of consultation and procedural irregularities in the promulgation
of the interrogation memoranda, the OLC implemented a useful set of
practice guidelines for OLC attorneys. Similarly, to address questions
raised by the evolution of APA policy on coercive interrogation, the
Ethics Committee of the APA is working on a document that contains
twenty-five interrogation vignettes with accompanying analysis in rela-
tion to APA policy statements on interrogation.15 Although this Ethics
Committee document does not set out practice guidelines, it does offer
Lessons Learned 191
explicit discussion of scenarios that military psychologists are likely to

face.
We have seen that, in formulating guidelines for addressing novel sit-
uations and applying ethical norms, professional organizations can play
an important, if contested, role. But we have also seen that member-
ship in a profession may help to shape virtues and character in impor-
tant ways. One reason military professionals responded so negatively
to the prospect of using coercive interrogation was certainly that their
professional codes explicitly prohibited such interrogation. But there
was also an almost palpable, visceral response from some military pro-
fessionals to the idea that the US military would, for example, sexu-
ally humiliate detainees as part of a regime of interrogation or that a
prosecution of a detainee in a military commission would use evidence
gathered through the use of torture.
Arguably, the rule of law was threatened by the efforts to justify and
use EITs that were, according to the schema I have defended in this
volume, abusive or torturous. Yet the aversion to the lack of account-
ability, to excessive executive-branch power, to the lack of procedural
safeguards insuring fair and just treatment of detainees, was wide-
spread and fueled a vigorous defense of the rule of law. If, as I believe,
the arguments of Jeremy Waldron and David Luban that we examined
in chapter 4 are correct, the spirit of American law is incompatible with
the kind of brutality evident in some of the practices that emerged in
the aftermath of the attacks of September 11, 2001. The hopeful side
of the recognition of this fact is that a commitment to the rule of law
provides something of an inoculation against tyranny and brutality.
However misguided or depressing the actions of some professionals
have been in the war on terror, we have also seen how the dispositions
shaped by the rule of law mobilized professionals to respond to the
perceived threat to justice and fairness.
Has that response been successful? Certainly some of the worst vio-
lations of the rule of law have been corrected, but it is hard to conclude
that a fundamental commitment to human rights has been restored
in the United States and will withstand another successful terrorist at-
tack of any significant magnitude. In worrying about the possibility of
long-term erosion of America’s commitment to human rights, I fol-
low Mark Danner. Danner notes that in the aftermath of 9/11 there
emerged what might be described as a “constitutional dictatorship.”16
192 Chapter Nine
Even better, he says, is the idea that what emerged after September
11 was a “state of exception.” As an umbrella term, state of exception
“gathers beneath it those emergency categories [“constitutional dicta-
torship,” “9/11 constitution,” “emergency constitution”] while empha-
sizing that this state has as its defining characteristic that it transcends
the borders of the strictly legal—that it occupies, in the words of the
philosopher Giorgio Agamben, ‘a position at the limit between politics
and law . . . an ambiguous, uncertain, borderline fringe, at the intersec-
tion of the legal and the political.’”17
The notion of a state of exception, or perhaps better, a State of ex-
ception, includes the idea that we live in a fundamentally different real-
ity than we did before terrorists targeted the United States. There is a
pre-9/11 reality and a post-9/11 reality, and the post-9/11 reality does
not include all the rights and freedoms once taken for granted in the
United States. The problem, says Danner, is that the state of excep-
tion has continued for ten years and shows no signs of abating. Where
torturing would once have been unthinkable, it is now a policy choice.
President Obama repudiated torture, but it is no longer unimaginable.
More troubling is the fact that there is little apparent regret among
Americans that the United States chose torture as a policy option for
counterterrorism in the war on terror. Nor is there any enthusiasm for
accepting responsibility for the mistreatment of prisoners in US cus-
tody. While the Bush administration was in office, there was no pos-
sibility of accountability, for, as Scott Horton noted at the time, “the
criminal investigative and prosecutorial functions are currently [in
2005] controlled by individuals who are involved in the conspiracy to
commit war crimes.”18 Yet little changed when Obama came into of-
fice, at least in terms of accountability. President Obama’s attorney
general, Eric Holder, began an investigation of possible violations of
US law, but ultimately chose not to file any charges.
The upshot of the failure to hold policymakers accountable is that
the good work of professionals who opposed abusive interrogation and
eventually stopped the worst of the practices—some thereby risking
or ending their careers—is precarious and fragile. As Danner puts the
point, we are left in a state of moral limbo:
As we look back today at these ghostly figures [of the detainees], at the
policymakers sitting in their offices who ordered these techniques, and the
Lessons Learned 193
lawyers who deemed them legal, and the interrogators who practiced them
on men chained naked in cold sunless rooms, we can have the sense, haunt-
ing as it is, that they are all looking forward at us, as we stand here today
judging what they did. If we know anything, it is that they knew this mo-
ment would come. They were determined to prepare for it, and in a sense
they succeeded brilliantly. The legal memos, however grotesque in their
reasoning and however widely denounced, have in effect held sway, and im-
posed a painful unremitting moral limbo on all of us.19
This is the great tragedy of living in a state of exception. As long as

we exempt our leaders from the norms of international law and a com-
mitment to human rights, not to mention US law, we remain morally
compromised. We can no longer serve a leadership role in the promo-
tion of human rights and the rule of law around the world, because we
have placed ourselves above the law and have not honored the norms
of human rights that we helped forge. This, at any rate, is Danner’s
view of America’s current situation. I turn in the final chapter to of-
fer my own assessment of where we stand nearly eleven years after
9/11 and why the evaluation of counterterrorism policies and practices
grounded in professional codes and cultures is crucial going forward.
Notes
1. Guiora divides interrogations into three categories: interrogations, coercive
interrogations, and torture. I believe that all interrogations are coercive, but only
some are abusive and fewer still rise to the level of torture. I have thus introduced
the category of abusive interrogations to describe interrogations that are unaccept-
able, but do not rise to the level of torture.
2. Department of the Army, FM 34-52, 3-16.
3. Ibid., iv–v.
4. “Convention (III) Relative to the Treatment of Prisoners of War, Geneva, 12
August 1949,” available on the website of the International Committee of the Red
Cross, www.icrc.org/ihl.nsf/WebART/375-590006.
5. FM 34-52 repeatedly urges caution when a particular technique comes close
to violating concerns articulated in the Geneva conventions about prisoner dignity
and integrity.
6. The following account is indebted to Gilbert Meilaender’s discussion in “Hu-
man Dignity.”
7. Ibid., 262, 263.
194 Chapter Nine
8. Kant, Groundwork of the Metaphysics of Morals, 50–51.

9. Note that psychological integrity does not yield a standard that can be applied
without some knowledge of particular prisoners. For that reason, there may some
disagreement about whether particular techniques threaten psychological integrity.
It is also important to note that in speaking of breaking a detainee’s will, I mean to
highlight the brokenness of the will and not merely the fact that a detainee is pres-
sured into doing something other than he might prefer.
10. “Inquiry into the Treatment of Detainees in U.S. Custody,” Committee on
Armed Services, US Senate, November 20, 2008, http://armed-services.senate
.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, 135–36.
11. Guiora, Constitutional Limits, 85.
12. For a discussion of how these techniques have been used as forms of tor-
ture, see Rejali, Torture and Democracy.
13. For a discussion of the effects of solitary confinement, see Atul Ga-
wande, “Hellhole,” New Yorker, March 30, 2009, www.newyorker.com/reporting/
2009/03/30/090330fa_fact_gawande; see also McCoy, Question of Torture.
14. President Obama’s escalation of drone attacks and targeted killings raises
ongoing concerns about the lack of transparency. According to most accounts, tar-
geted killing has been approved in an OLC memorandum that is not public. It is
hard not to wonder whether this memorandum will someday be leaked and be
dubbed “the killing memo.”
15. “Responses of the APA Ethics Committee to Questions, Comments, and
Vignettes Regarding APA Policy on the Role of Psychologists in National Secu-
rity–Related Activities,” APA, June 2011, www.apa.org/ethics/programs/national
-security-comments.pdf.
16. The term is taken from Rossiter, Constitutional Dictatorship.
17. Mark Danner, “After September 11: Our State of Exception,” New York
Review of Books, October 13, 2011, www.nybooks.com/articles/archives/2011/
oct/13/after-september-11-our-state-exception/?pagination=false.
18. “Expert Report of Scott Horton,” January 28, 2005, available on the Center
for Constitutional Rights website, http://ccrjustice.org/files/Appendix%20N.%20
5%20-%20Scott%20Horton%27s%20Affidavit.pdf.
19. Danner, “After September 11.”
Ten
This We Do Not Do
The Future of Interrogation and the
Ethics of Professional Responsibility
I believe there should be a thoughtful debate about what is neces-

sary and moral for a country to survive.
—Jose Rodriguez Jr., Hard Measures, 121
I write this concluding chapter of The Ethics of Interrogation a little over

ten and a half years after the attacks of September 11, 2001. Two items
in the news suggest both why debates about counterterrorism practices
are not likely to go away and how we might frame the national discus-
sion our country ought to have about the ethics of interrogation and
professional responsibility going forward. The first is the publication of
a book, Hard Measures, by Jose Rodriguez, the former director of the
National Clandestine Service of the CIA. In the book and in various
interviews during the promotional tour for the volume, Rodriguez vig-
orously defends counterterrorism measures used by the CIA in the war
on terror, including rendition and EITs.1 He argues that the enhanced
techniques used on Abu Zubaydah and Khalid Sheikh Mohammed re-
sulted in intelligence that was key in the prevention of specific terrorist
plots.
The second news item is the conviction of Adis Medunjanin on
federal charges of conspiring to use weapons of mass destruction and
other terrorist-related activities, as part of a plot to engage in suicide
bomb attacks on the subway system of New York City. Medunjanin
was brought to trial after authorities discovered the plot and after his
accomplices, Najibullah Zazi and Zarein Ahmedzay, agreed to testify
against him as part of a plea agreement. At trial, Zazi and Ahmedzay
testified that they had traveled with Medunjanin to Pakistan in 2008 to
196 Chapter Ten
train with al-Qaeda. They returned to the United States with the intent
of targeting the New York Stock Exchange, Times Square, or Grand
Central Station, before settling on the subway system as the desired
target. At the conclusion of the trial, Assistant Attorney General for
National Security Lisa Monaco described Medunjanin as “an active and
willing participant in one of the most serious terrorist plots against the
homeland since 9/11. Were it not for the combined efforts of the law
enforcement and intelligence communities, the suicide bomb attacks
that he and others planned would have been devastating.”2
These two stories—one about a book lauding the success of EITs;
the other about a terrorist attack narrowly averted—provide a useful
frame for concluding our discussion of the ethics of interrogation be-
cause they highlight the ongoing threat of terrorism and the need for
intelligence about potential attacks in order to prevent them. Those
who work in the field of counterterrorism know all too well that a suc-
cessful terrorist attack is almost inevitable and that the effort to prevent
terrorist attacks will require an ongoing calibration of the appropriate
moral and legal measures to combat that threat.
Assessing Counterterrorism Practices

Jose Rodriguez raises an important issue that has not been sufficiently
discussed. He notes that President Obama’s repudiation of EITs and
the use of rendition and black sites severely limits his options with sus-
pected terrorists. According to Rodriguez, the Obama administration
has adopted a “take no prisoners” approach. Because there are limited
options for where to imprison captured terrorists and only the tech-
niques of FM 34-52 available for interrogating prisoners once they are
detained, the administration has apparently adopted a policy that it is
better to kill terrorists than to capture them.3 “An administration that
thinks it was ‘torture’ to interfere with the sleep cycle of a handful of
the worst terrorists on the planet,” Rodriguez writes, “has no problem
with authorizing the firing of Hellfire missiles into a group of thirty
or forty suspects gathered around a campfire.” While I disagree with
Rodriguez’s casual dismissal of the significance of sleep deprivation, he
raises an important issue. As he trenchantly puts the point, “There is
no opportunity to interrogate or learn anything from a suspect who is
vaporized by a missile.”4
This We Do Not Do 197
Indeed, although I have said very little about targeted killing, I agree
with Rodriguez that it is the Obama administration’s version of coer-
cive interrogation. It is authorized by a secret memorandum issued
by the OLC; it is likely to be enormously controversial when the full
details of the program are finally revealed; and it departs dramatically
from traditional norms of law and morality. Consider, for example, the
killing of Anwar al-Awlaki.
Al-Awlaki was an American-born Muslim cleric who was killed in
September 2011 by a Hellfire missile fired from a drone operated by
the CIA. By all accounts, al-Awlaki was extremely successful in recruit-
ing jihadists for violent attacks against the United States. For example,
Major Nidal Malik Hasan, the army psychiatrist who shot thirteen
people in Fort Hood, Texas, had communicated with al-Awlaki, and
those convicted of the plot to target the New York City subway system
were influenced by al-Awlaki’s sermons. Nevertheless, al-Awlaki was
an American citizen, and he was executed without a trial, without legal
representation, and without any form of judicial review of which we
are aware. Moreover, Samir Khan, who edited an al-Qaeda online mag-
azine with al-Awlaki, was also killed in the drone strike. Like al-Awlaki,
Khan was an American citizen who was neither tried nor convicted be-
fore being executed.
I have focused fairly narrowly on the ethics of interrogation, but I
believe the close attention we have paid to issues of professional respon-
sibility can help us address the broader ethical issues raised by counter-
terrorism. This is not to say that the ethics of interrogation are settled.
The Obama administration has ruled out the use of EITs, presumably
because it deemed them to be contrary to fundamental American val-
ues, but it did so at a time when there was not blood on the ground. Yet
both the trial of Adis Medunjanin and Jose Rodriguez’s endorsement of
EITs as effective counterterrorism tools serve to remind us that terror-
ist activities are a real and continuing threat and that some counterter-
rorism experts believe that the use of abusive interrogations is justified.
Making predictions is not something scholars like to do, but it is a safe
bet that the issue of coercive interrogation will be revisited when there
is another successful terrorist attack in the United States.
When that happens, or when the issue of targeted killing is taken
up in the way that coercive interrogations have been, it will be impor-
tant to draw upon the expertise of professionals working in support of
198 Chapter Ten
these activities. In particular, it will be important to encourage a moral

discussion of counterterrorism that includes an engagement with the
codes of ethics that prevail in the professional fields called upon to fa-
cilitate counterterrorist practices. Jose Rodriguez is surely right when
he calls for “a thoughtful debate about what is necessary and moral for
a country to survive,” as quoted in this chapter’s epigraph, but what
troubles me about his account of CIA activities in Hard Measures is that
his call for the use of enhanced interrogation is primarily prudential.
There is almost no moral argument to be found in the volume and little
in the way of moral tradition to which he might appeal in terms of CIA
culture.5
If we compare his analysis of enhanced interrogation with that tak-
ing place among military professionals, the differences are striking.
Consider the work being done on military professional ethics in an age
of terrorism in which the character of conflict is rapidly changing. One
example of this work is a series of reports jointly sponsored by the ar-
my’s Center for Excellence for the Professional Military Ethic at West
Point and the Strategic Studies Institute of the Army War College. The
inaugural report, The Army’s Professional Military Ethic in an Era of Persis-
tent Conflict, authored by Don Snider, Paul Oh, and Kevin Toner, illus-
trates why reflecting on the morality of counterterrorism from within
a tradition of professional ethics is important.
The authors recognize that the character of conflict in the post-9/11
world is changing and that the army’s professional military ethic needs
to evolve to address the changing environment. But they are clear that
this evolution must not emerge merely as an ad hoc response to the
demands of fighting a war on terror, but should flow organically from
an established moral tradition embodied in the army’s professional cul-
ture. As Snider, Oh, and Toner point out, Army Field Manual 1 makes it
clear that professional ethics involves establishing a culture that shapes
the identity and character of army officers.
It is against this backdrop that Snider, Oh, and Toner take up the
challenges posed to military ethics in an era of persistent conflict. They
note that there are three major influences on army culture and ethics,
all of them currently in flux. The three categories of influence are (1)
the functional imperatives of the profession, (2) American values, be-
liefs, and social norms, and (3) international laws and treaties to which
the United States is party. And we can see how dynamic the situation is
by noting that the army has moved aggressively to build competencies

in counterinsurgency and nation building; Americans have been will-
ing to sacrifice civil liberties for security; and support for international
norms against torture has eroded domestically.
Snider, Oh, and Toner use a diagram showing the three categories
of influence exerting pressure on a core ethos of professional culture,
but their account actually suggests that the influence is exerted in both
directions. The erosion of support for international norms like the Ge-
neva conventions exerts influence on the army culture and ethos, but
that culture, with its strong commitment to the Geneva conventions,
exerts a countervailing pressure against this erosion. Indeed, both the
legal and moral foundations of the army culture resist some of the
shifting norms of the surrounding society.
We see this if we examine the legal documents that shape army
culture. The officer’s oath of commission, the Standards of Exem-
plary Conduct, the UCMJ, and the Soldier’s Rules all provide a bulwark
against a precipitous embrace of EITs or other forms of counterter-
rorism that arguably conflict with these documents.6 Consider the ten
rules of the law of war, known as the Soldier’s Rules:
1. Soldiers fight only enemy combatants.

2. Soldiers do not harm enemies who surrender. They disarm them
and turn them over to their superior.
3. Soldiers do not kill or torture any personnel in their custody.
4. Soldiers collect and care for the wounded, whether friend or foe.
5. Soldiers do not attack medical personnel, facilities, or equipment.
6. Soldiers destroy no more than the mission requires.
7. Soldiers treat civilians humanely.
8. Soldiers do not steal. Soldiers respect private property and posses-
sions.
9. Soldiers should do their best to prevent violations of the law of war.
10. Soldiers report all violations of the law of war to their superior.7
Arguably rules 2, 3, 9, and 10 conflict with the use of EITs, and while
Jose Rodriguez and others may be right that we need to adjust these
rules given the threat that terrorism poses to national security, to revise
these rules implicates an interlocking set of norms that has been consti-
tutive of professional military ethics.
200 Chapter Ten
The fact that the erosion of the commitment to norms of interna-

tional law and the rules of war strikes at the heart of army culture may
partly help explain the dissent of military professionals on the use of
EITs that we discussed in chapter 8. As we saw, there were many harsh
critics of the dissenters, and one of the fundamental criticisms was that
the dissenters broke with military tradition. This charge was especially
aimed at the retired generals who publicly criticized both the conduct
of the war in Iraq and Secretary of Defense Donald Rumsfeld. For our
purposes, it is not necessary to evaluate their criticism; it is enough to
know that it was situated in a context of expectations generated by mil-
itary culture and tradition.
Indeed, the dissent itself triggered a reassessment by scholars of
professional military ethics of when dissent is appropriate, given the
military’s commitment to civilian leadership and its insistence that
military leaders “show in themselves a good example of virtue, honor,
patriotism, and subordination” (my italics).8 Yet, in striking contrast to
the analysis of dissent offered by Sulmasy and Yoo that we reviewed
in chapter 8, this examination of dissent sought criteria for identify-
ing the appropriate occasions for public disagreement from norms of
professional military ethics. Thus, Don Snider places the discussion of
appropriate dissent within the context of a social-trustee model of mili-
tary professionalism where trust is key. There are, he says, three critical
moral relationships intrinsic to the military profession that are based
on trust—the profession and the American people, the profession and
civilian leaders, and, within the profession, senior leadership and junior
leaders.9 There are certainly legal and prudential considerations that
affect a judgment about whether dissent is appropriate, but the most
fundamental question is what effect dissent will have on these relation-
ships. Will it build or will it erode trust?
Snider offers five criteria that a leader who is considering dissent
should consult in making his or her decision. Two have to do with the
seriousness of the issue involved and with how qualified the leader is
to provide an accurate assessment of what the situation requires. The
other three criteria concern the motives for dissenting. The five criteria
can be stated as questions: Is the issue of sufficient gravity to risk sac-
rificing a trusting relationship? Does the dissenter have the expertise to
reach an appropriate dissenting view? Does the dissenter bear a risk; is
he prepared to sacrifice for his dissenting view? Why dissent now? Is the
dissent compatible with a record of loyal career service?
Codes of Professional Ethics and Counterterrorism

If we look back at the various professions’ responses to coercive inter-
rogation, we in fact see that professional codes—and the core values of
professional life they embody—are important to the moral assessment
of counterterrorism. Jose Rodriguez presses the issue of the ethics of
counterterrorism forcefully in the passage from which the epigraph of
this chapter is taken:
I believe there should be a thoughtful debate about what is necessary and

moral for a country to survive. It had been the policy of the U.S. govern-
ment since the Clinton administration, fully approved by Congress, to sup-
port regime change in Iraq. If Saddam could have been removed with a
single bullet, might that not have been preferable to a war that killed hun-
dreds of thousands of Iraqis, cost thousands of American lives, created tens
of thousands of amputees, and saddled U.S. taxpayers with estimated direct
costs of nearly $1 trillion? . . . Is it less moral to have a leader like Qadhafi
succumb to what some euphemistically referred to as “the ultimate brush
pass,” or to bomb his headquarters, hoping he somehow meets his demise,
along with the hundreds or perhaps thousands of others who surely will
be collateral damage? The answers to these questions are not easy. . . . I am
not arguing for broad-based or promiscuous use of operations, but giving
up the option without understanding what is at stake strikes me as exceed-
ingly unwise.10
Yet, for all the force with which he presses these questions, Rodriguez’s
effort to answer them is anemic at best. What constitutes a “promiscu-
ous” use of operations? We are not told. Why is waterboarding not
torture? We are told only that it was defined as not being torture by
the DOJ. Why might targeted killing be unacceptable? Only because it
eliminates the possibility of coercive interrogation.
The fact that Rodriguez offers only pragmatic, consequentialist as-
sessments of counterterrorist practices highlights the importance of
having a moral tradition upon which to rely in evaluating interrogation
202 Chapter Ten
and other forms of counterterrorism. When military professionals

asked about whether EITs were acceptable, they reflected on this ques-
tion from within a culture shaped by long-standing legal and moral
codes. The Standards of Exemplary Conduct, the UCMJ, the Seven
Army Values, the Warrior Ethos, and other articulations of the values
that shape military culture are all resources military professionals may
consult in assessing counterterrorism practices.
There are two important points to note at this juncture. The first is
that these codes are not simply foundational internally. They structure
society’s expectations of military professionals and are the basis of the
trust average Americans place in the military. As we noted in chapter 7,
codes of conduct ideally serve to shape the character of professionals
who embrace them, and an evaluation of character is essential to trust.
This is why Snider argues that the assessment of dissent must include
the evaluation of each of his five criteria in terms of its impact on the
trust the American people have in the military. It is also why three of
these five criteria, the personal sacrifice incurred in dissenting, the tim-
ing of the dissent, and the relation of the dissent to previous career
service, have to do with the dissenter’s motives and thus with his or her
character. In deciding whether to dissent publicly or to revise existing
military ethics to allow EITs, military professionals must attend to the
impact such decisions will have on external relationships.
In most cases, dissent is likely to erode trust. But not always. As
Snider puts it, “If the leader believes that an act of dissent best balances
the immediate felt obligation to bring his/her professional military ex-
pertise to bear in a public forum with the longer-term obligation to
lead and represent the profession as a social trustee, as a faithful servant
of the American people,” then dissent may be necessary. “On rare oc-
casions,” he writes, “true professionals must retain the moral space to
‘profess.’”11
The second fact of significance here is that the moral traditions of
the military evolve over time. No history of just war theory could fail
to note the evolution of the theory in response to changing histori-
cal circumstances. We can trace just war thinking in the West at least
back to Augustine, but to read Augustine on the justified use of force
is to enter a pre-Westphalian world where the sovereignty of nation-
states is unrecognized. Attending to this evolution reminds us that the
moral resources that military professionals consult in arriving at moral
judgments about counterterrorism are open to revision, as is the appli-

cation of professed values to the novel threats posed by contemporary
terrorism. Martin Cook has put this point about the changing circum-
stances of military engagement provocatively. Indeed, he suggests that
we may be at an epochal historical turning point that necessitates a fun-
damental shift in our moral thinking about war. The just war theory
that emerged in response to the post-Reformation Westphalian order
may no longer be adequate given twenty-first-century terrorist threats
to civilization itself.12
For example, Cook suggests that the Bush doctrine of preemptive or
preventative war might be construed as involving a new understanding
of terrorism such that the fight against terrorism would be immune
from some traditional just war restraints.
There might be a multilateral agreement, implicit or explicit, that some
threats warrant interventions that might not pass the inherited “just war”
tests of recent centuries. In that respect, just war would be returning to
its origins: rather than seeing war as a conflict among sovereign states in
response to aggression, the international community might see itself once
again as defending a “tranquility of order” in the international system
against incursions of alien systems and ideologies whose sole purpose is a
disruption and displacement of that order. In other words, the globalized
civilization grounded in democracy, human rights, free trade, communica-
tion, technology and science may be defending its civilization itself against
forces that seek its complete destruction.13
I believe that such a view of terrorism and the need to adjust the
tradition of just war and the law of armed conflict informs much of the
literature debating the ethics of targeted killing. As Kenneth Anderson
points out, the strategy of both the Bush and Obama administrations
was to treat al-Qaeda operatives as combatants for the purposes of jus-
tifying the use of drone strikes under international humanitarian law.
The claim has essentially been that a state of armed conflict exists be-
tween the United States and al-Qaeda and targeted killing is a form of
self-defense in that conflict. Yet, as Anderson points out, many, includ-
ing US allies, find this claim increasingly improbable.
The problem, says Anderson, is that the United States has conceded
that targeted killing can only be justified if the targets are treated as
combatants in an armed conflict. Yet this paradigm may well be ill
204 Chapter Ten
suited for conceptualizing terrorist threats posed by nonstate actors.

If so, then we may need to adapt the paradigm in order to respond to
changing historical circumstances. Critics of such an adaptation will
claim that we change the paradigm merely to allow us to do what we
want, but that is a cynical and ahistorical approach to the rules of war.
The better way to understand such a change would be to see it as an at-
tempt to apply the values embedded in the tradition of just war theory
to new realities.
Interestingly, Anderson acknowledges that there are legitimate con-
cerns with targeted killing that might well be framed in terms of just
war criteria of discrimination and proportionality. How do we know,
for example, that we are targeting a terrorist and not an innocent civil-
ian? How can we rule out excessive collateral damage? If the United
States is going to address these concerns, it will need to provide what
Anderson calls a “visible domestic standard.”14 This is why Anderson
suggests that Congress act to provide a transparent, unambiguous ar-
ticulation of the government’s understanding of its legal position in the
fight against terrorism.
“The deeper issue here,” Anderson writes, “is not merely a strate-
gic and political one about targeted killing and drones” but concerns
“covert uses of force under the doctrines of vital national interest and
self-defense.” On a range of issues, including interrogation techniques,
detention policy, and other matters bearing on counterterrorism, “a
general approach of overt legislation [from Congress] that removes
ambiguity is to be preferred.”15
Note that, in one sense, we have circled back to the issues of trans-
parency and accountability, which we took up in chapter 4 when we
examined Alan Dershowitz’s argument that we should create a system
of torture warrants. Indeed, what emerges in our exploration of the
ethics of interrogation is that it is not possible to take up the issue of
coercive interrogation in the aftermath of 9/11 in isolation from other
practices and policies of counterterrorism. We saw in the transition
from chapter 1 to chapter 2 that questions about the role of psycholo-
gists in interrogations raise much broader questions about whether
psychologists should play a central role in counterterrorism generally.
In chapter 3 we examined the role lawyers in the OLC played in lay-
ing the groundwork for the use of EITs. Five years later, lawyers within
the same office at the DOJ were busy writing memoranda authorizing
targeted killing. The work of both groups of lawyers was originally

conducted in secret, and both authorized practices that would have
been considered unthinkable a decade earlier. Many still argue that
both practices are fundamentally incompatible with the rule of law.
The chapters on physicians and military professionals also took us
beyond enhanced interrogation. Medical and military professionals
were involved in interrogations, but they also had to decide generally
how detainees should be treated. Questions about whether hunger-
striking detainees should be force-fed or whether military tribunals
should be used to adjudicate the legal situation of detainees are not
directly related to enhanced interrogations, but they raise important
moral issues. I also hope it is now clear that the issues raised by prac-
tices and policies of counterterrorism are usefully addressed by draw-
ing upon the codes of professional ethics of those who inevitably will
be called upon to implement those policies and practices. In this regard,
the military’s rich tradition of commitment to values and norms that
shape a military culture, which in turn shapes individual character, is
a model that other professions might emulate in seeking to wrestle
with ethical issues raised by the war on terror. The fact that the army is
committed to maintaining a culture that produces soldiers of character
means that a lot of institutional resources are devoted to thinking and
rethinking how to create and sustain such a culture. It would be a good
sign for democratic traditions in America if other professions sought so
intentionally to understand how best to respond to the war on terror as
professionals of character.
It is often said that the Constitution is not a suicide pact. Although
the basic idea behind this saying can be traced back to Thomas Jeffer-
son, its provenance in constitutional law is a dissent by Justice Robert
Jackson in the Supreme Court case Terminiello v. City of Chicago. The
case involved a Chicago city ordinance under which Arthur Terminiello
was convicted of a breach of the peace for what today might be called
hate speech. The majority opinion held that the Chicago ordinance was
a violation of Terminiello’s First Amendment free-speech rights. How-
ever, Justice Jackson believed that the threat to public order justified
a limitation of liberty. “This Court has gone far,” he wrote, “toward
accepting the doctrine that civil liberty means the removal of all re-
straints from these crowds and that all local attempts to maintain order
are impairments of the liberty of the citizen.”16
206 Chapter Ten
Arguably, Justice Jackson captured the core issue at stake in the eth-
ics of interrogation; namely, the tension between security and rights.
His claim of an existential threat to the Constitution from allowing
hatemongers like Terminiello to use inflammatory rhetoric to stoke
the passions of their followers is overblown, but the logic of his posi-
tion is sound. Jackson wrote that “the choice is not between order and
liberty. It is between liberty with order and anarchy without either.”17
In the context of the ethical issues raised by the practices and policies
adopted by the United States in the war on terror, I would recast Justice
Jackson’s insight as follows: In the fight against terrorism, the choice is
not between national security and human rights. It is between national
security with an appropriate respect for human rights and tyranny
without either.
Jackson’s worry, of course, was that a rigid and doctrinaire adher-
ence to liberty rights threatened the order necessary to the meaning-
ful exercise of freedom. The same might be said today. A blind and
absolutist adherence to human rights in the face of existential threats
to national security may well be suicidal. Yet it seems to me that the
greater threat comes from too quickly jettisoning concerns about hu-
man rights in the face of the dangers of terrorism. Jackson was right to
argue that we do not want to “convert the constitutional Bill of Rights
into a suicide pact,” and that to protect liberty without any regard to
consequences is to enter such a pact.18 But there is more than one way
for a democracy to commit suicide. A commitment to security no mat-
ter the cost may also be a kind of suicide pact.
How to balance order and liberty or security and human rights are
perennial questions for democratic societies. They are particularly
pressing in an age of terror. But the United States is not without re-
sources for addressing these questions. If this volume has been at all
successful, it will have shown that the professions may provide exactly
the sort of resources we need to wrestle with these questions in a seri-
ous and sustained way. To that end, it would be helpful to recover a
sense of how professions serve the common good and why the cul-
tivation of professional codes of conduct that may function to shape
culture and character is important to that service.
I began this volume by quoting Jeffrey Stout’s claim that the ethical
inheritance of American democracy consists partly of the activity of
intellectuals who attempt to make sense of the way ordinary Ameri-

cans think and talk about ethical issues by reflecting critically on the
conversations that inform everyday moral action. I have tried through-
out this study to make sense of the American response to terrorism
by looking at how several groups of ordinary Americans, professionals
of various sorts, thought and reasoned about how best to address the
threat of terrorism in the aftermath of the attacks of September 11,
2001.
I believe that we must set limits to the policies and practices of coun-
terterrorism that a liberal democracy must not transgress. Americans
should be able to say, “This we do not do.” But if there is any hope of
drawing such a line, we will need the help of professionals of character
to articulate and defend the limits of counterterrorism.
Notes
1. See, e.g., his combative interview on 60 Minutes, April 29, 2012, available
on the CBS News website, www.cbsnews.com/8301-18560_162-57423533/hard
-measures-ex-cia-head-defends-post-9-11-tactics/?tag=strip.
2. Mark Rockwell, “Third Conviction in 2009 New York Subway Attack
Plot,” Government Security News, May 2, 2012, www.gsnmagazine.com/node/
26254?c=law_enforcement_first_responders.
3. Kenneth Anderson has also made this point. See his working paper “Targeted
Killing in U.S. Counterterrorism Strategy and Law.”
4. Rodriguez, Hard Measures, 252.
5. I do not mean to suggest that Rodriguez or other CIA officers acted unethi-
cally or that there is no moral code that shapes CIA practice. Rodriguez makes
clear that loyalty is a central virtue for him and that his commitment to remain
loyal to his CIA colleagues was a driving force for many of his actions. The point
is that there is not a clearly articulated moral tradition to which Rodriguez, unlike,
say, JAG officers, could appeal.
6. Snider, Oh, and Toner, Army’s Professional Military Ethic, 13.
7. “Army Training and Leader Development,” Army Regulation 350-1, Depart-
ment of the Army, August 4, 2011, www.apd.army.mil/pdffiles/r350_1.pdf.
8. See the “Requirements of Exemplary Conduct” in 10 U.S.C. §§ 3583, 5947,
and 8583.
9. Snider, Dissent and Strategic Leadership.
10. Rodriguez, Hard Measures, 121.
11. Snider, Dissent and Strategic Leadership, 30.
208 Chapter Ten
12. Cook, Moral Warrior, 115.

13. Ibid., 36.
14. Anderson, “Targeted Killing in U.S. Counterterrorism Strategy and Law,” 28.
15. Ibid., 32.
16. Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) ( Jackson, R., dissenting).
17. Ibid.
18. Ibid.
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Abu Zubaydah, 69, 195 maleficence, 29–31; Koocher’s shift, 32,
“The Abuse of Occupational Licensing” 45–46; military psychologists, 23–24,
(Gellhorn), 138–39 31–32, 38–39, 41n3; PENS report’s
accountability. See professional critics and APA responses, 27–40,
accountability 45–46, 50–51, 189; PENS task force
Addington, David, 172–73 and PENS report, 24–40, 41n6, 45–46,
Agamben, Giorgio, 192 50–51, 189; problem of secrecy and
Ahmedzay, Zarein, 195–96 lack of consultation, 189; resolution
Allhoff, Fritz, 122–25, 158 acknowledging/affirming UN CAT,
American Bar Association (ABA): licens- 35–36; restatements and clarifications
ing, 137; open letter to Bush, 70–71; of policy, 34, 36–37; revised antitor-
resolution condemning torture, 70–71 ture resolutions, 36; twelve ethical
American Bar Association (ABA) Task obligations (what a psychologist must/
Force on the Treatment of Enemy must not do), 25–26. See also American
Combatants, 70–71 Psychological Association (APA) Eth-
American Civil Liberties Union, 22 ics Code; psychologists and national
American Medical Association (AMA), security-related work
22, 121; Code of Ethics, 121 American Psychological Association
American Nurses Association, 22 (APA) Ethics Code, 24–36, 39–40,
American Psychiatric Association, 59 45–46, 50–52, 59, 135, 141–42; compari-
American Psychological Association son of 1992/2002 codes, 30, 31; issue
(APA): Council of Representatives, of societal responsibility (to support
34–36, 38, 45; Ethics Committee national security), 28–31; issues of
document on interrogation policy, principle of beneficence and nonma-
36, 190–91; Ethics Office, 38; Model leficence, 29–31; and PENS task force/
Licensing Act (MLA), 142, 148n13 PENS report, 24–36, 39–40, 45–46, 50,
American Psychological Association 52, 135; “Principle A: Beneficence and
(APA) debate on coercive interroga- Nonmaleficence” (2002), 29; “Principle
tions, 8–9, 21–43, 189, 190–91; defini- B: Fidelity and Responsibility” (2002),
tions, 38, 39; Ethics Committee docu- 28–29; section 1.02 (on international
ment on APA interrogation policy, 36, law), 30–36, 45; the 2002 code, 27–36,
190–91; issue of societal responsibility 39–40, 45–46, 52, 135
216 Index
Anderson, Kenneth, 203–4 Bush, George W./Bush administration:

Annas, George, 115, 144–46, 159 accountability and the war on terror,
Applbaum, Arthur: on the case of San- 192; and APA interrogation policies,
son, executioner of Paris, 126–29; and 36–37; doctrine of preemptive or pre-
practice positivism, 13, 128–33, 154–55; ventative war, 203; and OLC interroga-
on role responsibilities, 13, 125–33, 135, tion memoranda, 11, 70–71, 172–74; se-
154–55; on role responsibilities and crecy, lack of transparency, and neglect
moral evaluation, 127–30 of interagency consultation, 172–74,
Arendt, Hannah, 64 188–89; US attorneys’ open letter to,
Army Field Manual (FM) 34-52, interroga- 11, 70–71; use of military commissions,
tion techniques approved for use by, 173–78, 188, 189
181–83, 185, 193n5, 196 Bybee, Jay. See Bybee memoranda (“tor-
army medical personnel. See military doc- ture memos”)
tors (army medical personnel) and the Bybee memoranda (“torture memos”),
treatment of detainees 38, 67–83, 87–88n1, 147; classified, 67–
The Army’s Professional Military Ethic in 68, 69, 73–77, 82, 83, 87–88n1; critics
an Era of Persistent Conflict (Snider, Oh, of, 100–101, 107; and failure to support
and Toner), 198–99 conclusions with solid legal reasoning,
Ashcroft, John, 173 76–77, 89n23, 147; OPR investigation,
assassinations of public officials, behav- 11, 71–83; section on “severe pain,”
ioral science research on, 49 74–76; section on specific intent, 74;
Augustine, Saint, 95, 202–3 unclassified, 67–71, 73–77, 87–88n1; US
al-Awlaki, Anwar, 197 attorneys’ open letter to Bush regard-
ing, 11, 70–71; Waldron’s comparison
Banks, Morgan, 32 with Dershowitz’s arguments, 100–101
Beaver, Diane, 84
behavioral science research, 48–50. See also California’s Joint Resolution 19 (oversight
national security psychology; psycholo- mechanisms and state licensing laws),
gists and national security-related work 143
Beleaguered Rulers: The Public Obligation of Camus, Albert, 96–99
the Professional (May), 1, 2 Candilis, Philip J., 21, 39, 59, 63, 64
Bellinger, John III, 69 CAT. See UN Convention Against Torture
Bok, Derek, 152 and Other Cruel, Inhuman, or Degrad-
Borum, Randy, 46–50, 54–55 ing Treatment or Punishment (CAT)
Bradbury, Steven: memorandum on Catone, Louis, 141
“Best Practices for OLC Opinions,” Center for Excellence for the Professional
80–81; “Techniques” and “Combined Military Ethic at West Point, 198
Techniques” memoranda, 68, 81–83, Center for Justice and Accountability,
89n23, 90n35, 104, 106–7, 108–10, 115, 140, 147
123–24, 157 Central Intelligence Agency (CIA):
Brant, David, 84, 161 Bellinger’s request for clarification on
Brint, Steven, 3, 5, 6 legal techniques for interrogation, 69;
BSCTs (Behavioral Science Consultation National Clandestine Service, 16, 195;
Teams) at Guantánamo Bay, 9, 51–52, and the OLC interrogation memo-
119, 140–41, 158–59 randa, 69; Rodriguez’s account of
Index 217
counterterrorism activities, 195, 198, counterintelligence (CI) community and

207n5 national security psychology, 46–50
Cheney, Dick, 172–73, 177 Counterintelligence Field Activity (CIFA)
Church, Albert, 84 Agency, 47–49; Directorate of Behav-
CIFA. See Counterintelligence Field Activ- ioral Sciences, 47–49
ity (CIFA) Agency Crawford, Susan, 176–77
civilian-military relations, 15, 167–72, criminal interrogations for law enforce-
173–74, 177, 188; fusionist theory of, ment, 52–54
171–72; Huntington’s theory of, 169– cruel, inhuman, or degrading punish-
70; and military professionalism, 15, ment (defining), 38, 39
167–72, 173–74, 177, 188; and principal-
agent model (rational choice theory), Danner, Mark, 180, 191–93
168–70, 172, 177; Sulmasy and Yoo’s The Dark Side (Mayer), 172
account of JAG officers’ resistance to Davis, Martha, 27–30, 50–51, 52–53
EITs, 15, 167–72, 173–74, 177, 188 Davis, Michael, 4–5
Coalition for Ethical Psychology: allega- Declaration of Malta, 124
tions of APA’s complicity with abusive Declaration of Tokyo, 116, 124, 159
interrogation at Guantánamo Bay democracy and the professions, 1–3, 44,
(August 2010), 37–39; “Reclaiming 205; and counterterrorism, 1–2, 16n1;
Our Profession: Psychology Ten Years national security and civil liberties,
after 9/11” ( July 2010 statement), 37; 2; and promotion of the common
response to APA’s PENS report, 37–39, good, 3; Stout’s vision of, 1, 3, 150,
40 206–7. See also social-trustee model of
Cocking, Dean, 4, 14, 150, 151–55, 160 professionalism
Code of Federal Regulations (title 28, Democracy and Tradition (Stout), 1
part 77), 73 Department of Defense (DOD): CIFA
codes of professional ethics, 7, 198, and national security psychologists,
201–7; the AMA, 121; American Psychi- 47–49; and OLC interrogation policy,
atric Association, 59; the APA, 24–36, 165–67, 172; response to Guantánamo
39–40, 45–46, 50–52, 59, 135, 142; and Bay hunger strikers, 124–25
counterterrorism, 198, 201–7; distinc- Department of Justice (DOJ): and the
tion between codes of ethics and pro- OLC interrogation memoranda, 11, 22,
fessional ideals, 7; and force-feeding of 71–83, 146; and OPR investigation of
hunger strikers, 124–25, 159, 205; medi- OLC interrogation memoranda, 77–80,
cal profession, 116–17, 120–25, 156–60, 82, 146. See also Office of Professional
205; military professionals and moral Responsibility (OPR) investigation of
values of military culture, 15, 164, OLC interrogation memoranda (“tor-
169–72, 177, 198, 202–3, 205; “practice ture memos”)
ethics” and “institutional ethics,” 7; Dershowitz, Alan: on judicial oversight
and regulative ideals, 14–15, 157–60, of interrogations and judicial review to
161–62; usefulness of, 14–15, 161 authorize torture warrants, 188, 189,
Cole, David, 81, 83–84 190, 204; “ticking bomb” scenario (and
Cook, Martin, 203 arguments for legalizing torture), 12–13,
cosmetic surgeons, 154 91–94, 95–96, 100–103, 111n17; on
Costanzo, Mark, 51–52, 54–55, 60 truth serum interrogations, 93, 111n6
218 Index
dignity of the human person (and inter- role responsibilities and, 126, 130–31;
rogation techniques), 15–16, 183–88; and contrast between social-trustee
autonomy-based account (comparative professionalism and, 130–32; Freidson
dignity), 15–16, 183–88; and classified on social consequences of, 6, 7; and
Bybee memorandum, 185–88; and licensing (“capture” model), 136, 139;
Kant’s conception of humans (as ratio- and neutral expertise, 130–32; and
nal agents), 184–85; and noncompara- psychology profession, 39–40; and
tive concepts of dignity, 183–84; and specialized knowledge, 131–33, 141
techniques 1–6 of the classified Bybee
memorandum, 185–86; and techniques FBI Behavioral Analysis Program (BAP)
approved for use by FM 34-52, 183, 185, and Squillacote case, 57–64, 66n29,
193n5; and tension between security 66n31
and human rights, 205–6; and threats Fein, Robert, 49
to psychological integrity, 185, 194n9; Filip, Mark, 78
and use of pain, 185 FM 34-52. See Army Field Manual (FM)
dissent and military professionals, 34-52
200–201, 202 force-feeding of hunger strikers, 124–25,
District of Columbia Bar Association’s 158–60, 205
“Rules of Professional Conduct,” 77 Foreign Intelligence Surveillance Act
drone attacks, 194n14, 197, 203–4 (FISA), 57
Dzur, Albert W., 17n2, 44 Frakt, David, 175–76, 177–78, 179n24
Freedom of Information Act, 22
education, profession of, 152–53 Freidson, Eliot, 3, 5, 6, 7, 130–31, 135
EITs (enhanced interrogation tech- fusionist theory of civilian-military rela-
niques). See interrogation techniques tions, 171, 172
(EITs) future of interrogation, 16, 195–208;
England, Lynndie, 21–22 assessing counterterrorism prac-
Ethical Standards for Attorneys for the tices, 196–201; drawing lessons from
Government, 73 Guantánamo Bay, 188–93; Obama
“Ethics and the Invisible Psychologist” administration and EIT policies, 16,
(Koocher), 61–62 196–97; Obama administration and
ethics codes. See codes of professional targeted killing, 16, 88–89n10, 194n14,
ethics 196–97, 203–4; Rodriguez’s arguments
Ethics for Adversaries: The Morality of Roles for reconsidering EITs, 16, 195, 196–98,
in Public and Professional Life (Ap- 201–2
plbaum), 125
Ewing, Charles, 59 Gates, Robert, 37
Exceptional Case Study Project (ECSP), Gelles, Michael, 31–32, 59, 84, 161
49–50 Gellhorn, Walter, 138–39
Experiments in Torture: Evidence of Human Geneva Convention for the Amelioration
Subject Research and Experimentation in of the Wounded and Sick in Armed
the “Enhanced” Interrogation Program Forces in the Field (GWS), 182
(2010 PHR white paper), 104–5 Geneva Convention Relative to the Pro-
expertise professionalism (hired guns), tection of Civilian Persons in Time of
2–3, 5, 6–7, 40, 130–32; Applbaum on War (GC), 182
Index 219
Geneva Convention Relative to the conventions on treatment of prisoners,

Treatment of Prisoners in War (GPW), 116–17, 124, 156–57; post-9/11 erosion
33–34, 52, 166, 182; and FM 34-52 inter- of America’s commitment to, 180,
rogation techniques, 182; and TJAGs’ 191–93; tension between security and,
opposition to EITs, 166 205–6
Geneva Declaration (1948), 116 Human Rights Watch, 22, 149n24
Gerrity, Ellen, 51–52, 54–55, 60 hunger strikers, 124–25, 158–60, 205
Glantz, Leonard, 145–46 Huntington, Samuel: and fusionist theory
Gonzales, Alberto, 69, 88n1 of civilian-military relations, 171, 172;
Goodheart, Carol, 37 on military code of professional ethics,
Goodman, Amy, 36 15, 164, 169–72, 177; on the military
Grodin, Michael, 145–46, 159 mindset, 170; theory of civilian-mili-
Guantánamo Bay detention center, EITs tary relations, 169–70
at, 15–16, 180–94; drawing lessons
from, 188–93; and hunger strikers, 124– institutional ethics, 7. See also profes-
25, 158–60, 205; Jawad detention and sional role responsibilities; psychology
interrogation, 175–76, 177–78; Leso’s profession
memorandum on three categories of International Committee of the Red
interrogation techniques, 144; military Cross (ICRC), 37, 144
commissions and trials, 175–76, interrogation memoranda (“torture
177–78; NCIS investigation of treat- memos”) of the OLC, 10–12, 22, 38,
ment, 84; PENS report and psycholo- 67–90, 87–88n1, 172–73, 189, 190; and
gists’ roles, 24–40, 41n6, 45–46, 50–51, ABA resolution condemning torture,
189; psychologists/BSCTs, 9, 51–52, 70–71; and Bellinger’s request for
119, 140–41, 158–59; psychologists’ clarification on legal techniques for
efforts to hold colleagues accountable, CIA interrogation, 69; Bradbury “Tech-
23, 139–47; report of the Office of niques” and “Combined Techniques”
Surgeon General of the Army, 118–21, memoranda, 68, 81–83, 89n23, 90n35,
124, 157–58, 190; sleep deprivation, 104, 106–7, 115, 123–24, 157; and Bush
105–6, 108, 185, 186–87 administration’s neglect of interagency
Guiora, Amos, 180, 181, 187, 189, 193n1 consultations, 172–74, 188–89; classi-
fied Bybee memorandum, 67–68, 69,
Hamdan v. Rumsfeld (2006), 173, 174–75 73–77, 82, 83, 87–88n1; DOJ’s rejection
Hard Measures (Rodriguez), 195, 198 of OPR findings, 77–80, 82, 146; JAG
Harvard University’s International Hu- officers’ opposition to, 165–67, 169,
man Rights Clinic, 147 173–78; Levin memorandum, 68, 81–
Hasan, Nidal Malik, 197 82, 89n23; Mora’s opposition to, 11–12,
Hayden, Michael, 36 84–87, 90n39, 91–92, 161–62, 164–65;
Haynes, William J., II, 84–85, 165, 177 Mora’s “Statement for the Record”
Holder, Eric, 36, 192 memorandum, 85–87, 90n39, 91–92;
Horton, Scott, 72, 176–77, 192 noninstitutional responses, 11–12,
House Armed Services Committee, 37 83–87; OPR investigation, 11, 71–83;
human dignity. See dignity of the human process issues in the OPR investigation,
person 77–80, 82, 146; question of US law
human rights: medical professionals and (section 2340), 69–71; questionable
220 Index
interrogation memoranda (continued) 106, 144, 185, 187; three categories of,
legal reasoning, 76–77, 89n23, 147; 144, 181, 193n1; truth serum inter-
responses from the legal community, rogations, 64–65, 66n38, 93, 111n6,
11, 70–71, 100–101, 135; subsequent 185; water dousing, 83, 106, 109–10;
efforts to clarify standards for OLC law- waterboarding, 104, 105, 108, 185,
yers, 80–81; subsequent memoranda 187. See also interrogation memoranda
upholding legality of EITs, 81–83; and (“torture memos”) of the OLC; rule of
UN CAT, 38, 69–70, 101; unclassified law and coercive interrogation
Bybee memorandum, 67–71, 73–77, Ireland v. United Kingdom (1978), 86
87–88n1; US attorneys’ open letter to
Bush, 11, 70–71; Yoo memorandum, Jabar, Satar, 21–22
11–12, 67–70, 73–77, 84–87, 87–88n1, Jackson, Robert, 205–6
172, 173; Yoo’s summary letter to JAG Corps and TJAGs (the judge
Gonzales, 69 advocates general), 165–78; and Bush
interrogation techniques (EITs), 35, 83; administration’s military commissions,
assessing the US response to terrorism, 173–78, 188, 189; civilian-military rela-
15–16, 180–94; Bradbury “Combined tions and military professionalism, 15,
Techniques” memorandum, 82–83, 167–72, 173–74, 177, 188; commitment
106–7, 108–10; Bybee memoranda, 74– to military professionalism, 170–78;
76, 83, 106–7, 185–88; calibration for independence of, 167; and interroga-
maximum effect (severe pain), 105–7, tion policy authorized by the OLC
108–10; and coercive nature of all in- torture memos, 165–67, 169, 173–78;
terrogation, 181; constraints of Geneva opposition/resistance to abusive inter-
Conventions and the UMCJ, 182–83, rogation, 15, 164–79, 191; role respon-
193n5; exposure, 35, 144; “Fear-Up sibilities, 167; and the UCMJ, 166–67,
(Harsh)” approach, 181–82; five prin- 169, 173. See also military conscience;
ciples for psychologists’ involvement, military professionalism
51–52, 54–55, 60; FM 34-52, 181–83, James, Larry, 23–24, 41n3, 143, 147
185, 193n5, 196; food restrictions, 144; Jawad, Mohammed, 175–76, 177–78,
impermissible, 15–16; instructional 179n24
apparatus, 104–7; isolation, 23–24, 35, judicial oversight of interrogations, 188,
38, 144; Leso’s memorandum on, 144; 189, 190, 204
lessons to be drawn from Guantánamo The Just Assassins (Camus), 96–99
Bay, 188–93; medical monitoring, just war theory, 95, 202–4
105–6, 108–10, 123–24; pain, 74–76,
105–7, 108–10, 185; and the prisoner’s Kant, Immanuel, 184–85
personal dignity, 15–16, 183–88, 193n5; Kasrils, Ronnie, 57
and the prisoner’s psychological integ- Khalid Sheikh Mohammed, 195
rity, 185, 194n9; Rodriguez’s arguments Khan, Samir, 197
for reconsidering, 16, 195, 196–98, Koh, Harold, 72, 88n10
201–2; SERE training, 103–6, 140; sleep Koocher, Gerald, 32, 45–46, 61–62
deprivation, 105–6, 108, 185, 186–87,
196; slippery-slope argument that any Lancet, 34, 36
interrogation can become abusive, Larson, Magali, 4
50–51, 65n12; stress positions, 35, 83, law profession: efforts within the OLC to
Index 221
clarify expectations of office lawyers, 115–16; and the public trust, 155–60;
80–81; legal community’s responses to regulative ideals of, 151–55, 157–60;
the OLC interrogation memoranda, role responsibilities, 13, 115–34,
11, 70–71, 100–101, 135; and licensing, 154–55; and social-trustee model,
137–38; mutually reinforcing claims of 122–23, 125, 137, 151–60. See also medi-
medicine and, 115–16. See also interro- cal professionals and the war on terror
gation memoranda (“torture memos”) medical professionals and the war on
of the OLC; rule of law and coercive terror: army personnel and detainee
interrogation medical treatment, 117–21, 124,
Leso, John, 140–42, 144, 147; memoran- 157–58, 190; CIA personnel and OMS
dum on three categories of psychologi- guidelines, 106, 115, 117, 124, 157;
cal interrogation techniques, 144; NY and codes of medical ethics, 116–17,
Board of Psychology’s handling of 120–25, 156–57, 205; complicity in
complaint about, 140–42, 144 torture, 157; force-feeding hunger strik-
Levin, Daniel, 68 ers, 124–25, 158–60, 205; human rights
Levin memorandum, 68, 81–82, 89n23 conventions on treatment of prisoners,
licensing, 14, 136–39; and APA Code of 116–17, 124, 156–57; interrogations and
Ethics, 141–42; “capture” model, 14, paradox of conflicting duties (Allhoff ’s
136–39; effects of requirements on argument that physicians both must/
various occupations, 136–38, 148n2; must not participate), 122–25, 158;
and expertise professionalism, 136, medical monitoring of detainees, 105–
139; lawyers/attorneys, 137–38; and 6, 108–10, 123–24; Miles on, 156–57;
military psychologists at Guantánamo and sleep deprivation, 105–6, 108; and
Bay, 139–44; New York, 139–44; physi- social-trustee model of professional-
cians/medical profession, 137; public ism, 122–23, 125; and waterboarding,
interest model, 14, 136–37, 146; and 105, 108
social-trustee professionalism, 136; Medunjanin, Adis, 195–96, 197
state laws, 141–42. See also professional Meilaender, Gilbert, 184
accountability Mercier, Louis Sébastien, 126
Lifton, Robert Jay, 21, 46, 147 Miles, Steven, 116, 156–57
Lohr, Michael, 166–67 Milgram, Stanley (Milgram experiments),
Louis XVI, 126 51
Luban, David, 101–3, 104, 107, 162, 191 military commissions: at Guantánamo
Lykes, M. Brinton, 51–52, 54–55, 60 Bay, 175–76, 177–78; JAG officers
and Bush administration’s, 173–78,
Margolis, David, 72, 77–80, 146 188, 189; Jawad prosecution, 175–76,
Maurizi, Alex, 138 177–78, 179n24; and legal situation
May, William F., 1, 2, 4 of detainees, 176; political nature of,
Mayer, Jane, 161–62, 172–73 176–77; Supreme Court ruling, 173,
medical professionalism: Applbaum’s 174–75, 189
account of role responsibilities, 13, military conscience, 15, 164–79, 191; and
125–33, 135, 154–55; comparing to civilian-military relations, 15, 167–72,
psychologists, 63–64, 66n35; cosmetic 173–74, 177, 188; and codes of ethics/
surgeons, 154; licensing, 137; mutually values of military culture, 15, 164,
reinforcing claims of law and medicine, 169–72, 177; Huntington on, 15, 164,
222 Index
military conscience (continued) Mitchell, James, 143

169–72, 177; independence of JAG Model Rules of Professional Responsibil-
Corps/TJAGs, 167; JAG officers’ com- ity, 73, 76
mitment to military professionalism, Monaco, Lisa, 195–96
170–78; JAG officers’ opposition to Mongoven, Ann, 16n1
abusive interrogation, 15, 164–79, 191; Monitor on Psychology (APA publication),
JAG officers’ opposition to military 45
commissions, 173–78, 188, 189; and the Moorehead-Slaughter, Olivia, 31–32
military mindset, 170; and Mora’s op- Mora, Alberto: concerns about torture
position to EIT policy at Guantánamo and rule of law, 11–12, 87, 93–94, 95;
Bay, 11–12, 84–87, 161–62, 164–65; and and OLC torture memos/enhanced in-
“principal-agent” model, 168–70, 172, terrogation policy at Guantánamo Bay,
177 11–12, 84–87, 90n39, 91–92, 161–62,
military doctors (army medical person- 164–65; response to Yoo memoran-
nel) and the treatment of detainees, dum, 11–12, 84–87; “Statement for the
117–21, 124, 157–58, 190; and aware- Record” memorandum, 85–87, 90n39,
ness of relevant army policies/regu- 91–92
lations, 118–19; claims that medical Morello, Steven, 84
personnel were not present/did not Moussaoui, Zacarias, 93, 110n5
participate, 119–20, 157–58; pre- and Mukasey, Michael, 36, 77–78
postinterrogation screenings, 118; re-
port of the Office of Surgeon General National Clandestine Service of the CIA,
of the Army, 118–21, 124, 157–58, 190; 16, 195
use of physical restraints, 118. See also National Conference of Bar Examiners,
medical professionals and the war on 137
terror National Security Council (NSC), 69
military professionalism, 198–201; and national security psychology, 46–50;
civilian-military relations, 15, 167–72, and CIFA’s Directorate of Behavioral
173–74, 177, 188; codes of professional Sciences, 47–49; ECSP model, 49–50;
ethics and values of military culture, four counterintelligence functions
15, 164, 169–72, 177, 198, 202–3, 205; of, 47–49, 54–55; and operationally
Huntington on, 15, 164, 169–72, 177; relevant behavioral science research,
JAG Corps, 165–78; and military dis- 48–50; recruiting and training human
sent, 200–201, 202; and military mind- assets (for CI), 47–48, 54–55; Shumate
set, 170; and “principal-agent” model, and Borum on, 46–49
168–70, 172, 177; social-trustee model, Naval Criminal Investigative Service
200–201; the Soldier’s Rules (ten rules (NCIS), 31–32, 84
of the law of war), 199; Sulmasy and New York Bar Association’s International
Yoo’s account of, 15, 167–72, 173–74, Human Rights Committee, 72
177, 188; three categories of influence New York Board of Psychology, 140–42,
on army culture and ethics, 198–99 144
military psychologists, 23–24, 31–32, New York Office of Professional Disci-
38–39, 41n3, 61–64, 139–47 pline, 140–41
Miller, Geoffrey, 23 New York state: complaint about
Index 223
Guantánamo Bay psychologist Leso, memoranda, 73–77; Yoo memoran-

140–42, 144; efforts to prohibit involve- dum, 73–77
ment of physicians in abusive interro- Office of Surgeon General of the Army,
gations, 143–44; oversight mechanisms report on detainee medical operations,
and state licensing laws, 139–44 118–21, 124, 157–58, 190
Nuremberg trials, 145 Office of the Chairman of the Join Chiefs
of Staff, 165
Oakley, Justin, 4, 14, 150, 151–55, 160 Office of the General Counsel of the
Oath Betrayed (Miles), 156–57 Navy, 84
Obama, Barack: accountability and the Oh, Paul, 198–99
war on terror, 192; and APA interro- Ohio Board of Psychology, 23; Ohio
gation policies, 36–37; drone attacks, Revised Code (ORC), 24
194n14, 197, 203–4; repudiation of OLC. See interrogation memoranda
EITs, 16, 192, 196, 197; targeted killing (“torture memos”) of the OLC; Office
policy, 16, 88–89n10, 194n14, 196–97, of Legal Counsel (OLC)
203–4 Olson, Brad, 27–30, 50–54, 59–60, 65n12
“Occupational Licensing and the Public OMS. See Office of Medical Services
Interest” (Maurizi), 138 (OMS), guidelines for CIA medical
Office of Legal Counsel (OLC): function/ personnel
responsibilities, 68–69; “Principles to OPR. See Office of Professional Respon-
Guide the Office of Legal Counsel,” sibility (OPR) investigation of OLC
73, 80, 89n29; targeted killing memo- interrogation memoranda (“torture
randum, 88–89n10, 194n14, 197, 204–5. memos”)
See also interrogation memoranda
(“torture memos”) of the OLC Pagliero, Mario, 136–38, 148n2
Office of Medical Services (OMS), guide- Panetta, Leon, 36–37
lines for CIA medical personnel, 106, PENS (Psychological Ethics and National
115, 117, 124, 157 Security) task force and report, 24–40,
Office of Professional Responsibility 41n6, 45–46, 50–51, 189; and APA de-
(OPR) investigation of OLC interroga- bate on psychologists’ roles in war on
tion memoranda (“torture memos”), terror, 24–40, 41n6, 45–46, 50–51, 189;
11, 71–83; “Analytical Framework,” and APA Ethics Code, 24–36, 39–40,
73; DOJ’s rejection of findings, 77–80, 45–46, 50–52, 59, 135; APA responses to
82, 146; findings of Yoo and Bybee’s critics, 27–40, 45–46, 50–51, 189; com-
professional misconduct, 73–77; on peting histories of, 36–40; problem of
legal reasoning failures, 76–77, 89n23; secrecy and lack of consultation, 189;
obstacles to investigation, 72–73; of- twelve statements of ethical obliga-
ficial request for investigation, 71–72; tions, 25–26
process issues, 77–80, 82, 146; report Philbin, Patrick, 73
release date/opportunity for review, Philosophy, Ethics, and Humanities in Medi-
78; role/responsibility of the OPR, 72; cine, “Ethics of Interrogation and the
sources for, 73; two drafts of the report American Psychological Association”
(with different analytical standards), (Olson, Soldz, and Davis), 27, 50–51
78–80; unclassified and classified Bybee physician-assisted suicide, 160
224 Index
physicians. See medical professionalism; ideals, 14–15, 151–62; and specialized

medical professionals and the war on knowledge, 131–33, 141; and the use-
terror fulness of codes of ethics, 14–15, 161;
Physicians for Human Rights (PHR), 22; and virtue ethics, 14, 150–62. See also
June 2010 white paper on instances of psychologists and national security-
experimentation in coercive interroga- related work
tions, 104–5 professions, working account of, 3–8; and
Pipher, Mary, 27 distinction between codes of ethics and
Posner, Eric A., 91, 92 professional ideals, 7; Freidson ideal-
Powell, Colin, 168, 173 typical definition, 5, 7, 130–31; Fre-
practice ethics, 7. See also licensing idson on five elements of professions,
practice positivism, 13, 128–33, 154–55 130–31; history of professions in the
preemptive or preventative war, 203 US (shift in paradigms/two models),
“principal-agent” model and military 5–7, 40; moral-ethical component and
professionalism, 168–70, 172, 177 commitment to the common good,
“Principles to Guide the Office of Legal 4–8; practice positivism, 13, 128–33,
Counsel,” 73, 80, 89n29 154–55. See also expertise professional-
professional accountability, 14, 135–49; ism (hired guns); social-trustee model
and Bush administration’s war on ter- of professionalism
ror, 192; importance of, 139–47, 189, “Psychological Support to Defense Coun-
192–93; international tribunals, 144–46; terintelligence Operations” (Shumate
and licensing, 14, 136–39; Miles’s study and Borum), 46–49
of moral accountability, 156–57; and psychologists and national security-
Obama administration’s war on terror, related work, 8–10, 21–43, 44–66,
192; oversight mechanisms and state 189, 190–91; APA debate on coercive
licensing laws, 139–44; and psycholo- interrogations, 8–9, 21–43, 189, 190–91;
gists’ involvement in interrogations, APA Ethics Code, 24–36, 25, 26, 27–36,
61–64, 139–47. See also licensing 39–40, 45–46, 50–52, 59, 135, 141–42;
professional ethics codes. See codes of APA resolution acknowledging and
professional ethics affirming UN CAT, 35–36; APA’s PENS
professional role responsibilities, 14, task force and PENS report, 24–40,
150–63; and adversarial institutions, 41n6, 45–46, 50–51, 189; APA’s revised
125–26; Applbaum’s account of, 13, antitorture resolutions, 36; arguments
125–33, 135, 154–55; educators/ for bright-line prohibition on interro-
profession of education, 152–53; and gations, 50–55, 65n12; arguments that
expertise professionalism, 126, 130–31; ethics codes are violated, 51–52, 60;
medical profession, 115–34, 151–55, BSCTs at Guantánamo Bay, 9, 51–52,
157–60; medicine and the public trust, 119, 140–41, 158–59; CI and Director-
155–60; and moral evaluation (“direct ate of Behavioral Sciences, 47–49;
moralization” and “mediated moraliza- CI recruiting and training human
tion”), 127–30; and practice positivism, assets, 47–48, 54–55; consultation on
13, 128–33, 154–55; and psychologists uncooperative sources, 47–49; FBI BAP
in national security-related work, team, 57–64, 66n29; five principles for
9–10, 44–66; the public trust and social involvement in interrogation, 51–52,
expectations, 155; and regulative 54–55, 60; and institutional ethics,
Index 225
9–10, 44–66; managing relationship 11–13, 87, 91–112, 191–92; arguments

between case officer and intelligence against torture, 99–103, 107–10, 191;
asset, 47–48; mapping a middle-of- and Bradbury memoranda, 104, 106–7,
the-road position, 55–65; military psy- 108–10; Camus and leaders’ respon-
chologists, 23–24, 31–32, 38–39, 41n3, sibility for their actions, 96–99; and
139–47; national security psychology, critics of the OLC torture memos,
46–50; PENS report’s twelve ethical 100–101, 104, 106–10; Dershowitz’s
obligations, 25–26; and professional ac- “ticking bomb” scenario, 12–13, 91–94,
countability, 23, 61–64, 139–47; psycho- 95–96, 100–103, 111n17; and EITs cali-
logical risk assessment, 47; Squillacote brated for severe pain, 105–7, 108–10;
case, 56–64, 66n29, 66n31 and instructional apparatus (training
Psychologists for Social Responsibility, 27, and experimentation), 104–7; legal
38–39, 40 archetypes, 101; and legal model of
psychology profession, 9–10, 21–43, malum prohibitum (rather than malum
44–66; consultant work (and moral in se), 100–101; Luban’s arguments,
problem of ), 61–62; expertise model 101–3, 104, 107, 162, 191; and medical
of professionalism, 39–40; oversight monitoring of detainees, 105–6, 108–
mechanisms and state licensing laws, 10, 123–24; and military values, 11–12,
139–43; professional accountability, 23, 87; Mora’s concerns about, 11–12, 87,
61–64, 139–47; social-trustee model 93–94, 95; and mutually reinforcing
of professionalism, 39–40. See also claims of law and medicine, 115–16;
psychologists and national security- problem of dirty hands, 94–110; and
related work SERE training, 103–6, 140; Shue’s argu-
ments, 103, 104, 107; Soldier’s Rules
al-Qaeda operatives, 69 (ten rules of the law of war), 199; Wal-
al Qahtani, Mohammed, 140 dron’s arguments, 13, 99–101, 110, 191;
Walzer’s arguments, 93–99, 102–3
Rasul, Shafiq, 23–24 Rumsfeld, Donald, 144–45, 165–67, 200;
rational choice theory (and principal- authorizing DOD EITs, 84–85, 165–67;
agent model), 168–70, 172, 177 retired officers’ call for resignation,
Reeder, John P., Jr., 94 168; and Yoo memorandum, 84–85
Reisner, Steven, 140
Rice, Condoleezza, 173 Sanson, Claude-Henri, the executioner of
Rives, Jack, 166 Paris, 126–29
Rizzo, John, 69, 88n1 Scarry, Elaine, 115
Rochin v. California (1952), 91 Schafer, John, 63
Rodriguez, Jose, Jr., 16, 195, 196–98, Senate Armed Services Committee, 23,
201–2, 207n5 37, 186
role responsibilities. See professional role Senate Judiciary Committee, 37
responsibilities Senate Select Committee on Intelligence,
Rome Statute of the International Crimi- 37
nal Court (ICC), 69 SERE (survival, evasion, resistance,
Rosenthal, Joel, 164 escape) training, 103–6, 140
Rothchild, Jonathan, 108 Seven Army Values, 202
rule of law and coercive interrogation, Sherman, Nancy, 67, 107
226 Index
Shinseki, Eric, 168 and just war criteria, 203–4; Obama

Shue, Henry, 103, 104, 107 administration policy, 16, 88–89n10,
Shumate, Scott, 46–49, 54–55 194n14, 196–97, 203–4; OLC targeted
Slahi, Mohamadou Walid, 186–87 killing memorandum, 88–89n10,
sleep deprivation, 196; classified Bybee 194n14, 197, 204–5
memorandum, 185, 186–87; experi- Tawney, R. H., 5
mentation in, 105; at Guantánamo Terminiello v. City of Chicago (1949), 205–6
Bay, 105–6, 108, 185, 186–87; medical “ticking bomb” scenario, 12–13, 91–94,
monitoring of, 105–6, 108; as threat to 95–96, 100–103, 111n17
personal dignity, 185, 186–87 “Timeline of APA Policies and Actions
Snider, Don, 198–99, 200–201, 202 Related to Detainee Welfare and
social-trustee model of professionalism, Professional Ethics in the Context of
2–3, 40, 188; contrast with neutral Interrogation and National Security”
expertise professionalism, 130–32; and (2012), 34, 36–37
licensing (public interest model), 136; TJAGs, 165–67. See also JAG Corps and
medical profession, 122–23, 125, 137, TJAGs (the judge advocates general)
151–60; and Miles’s study of moral Toner, Kevin, 198–99
accountability, 156–57; and military Tornberg, David, 122–23
professionalism (military dissent), torture, defining: APA definitions, 38, 39;
200–201; and psychology profession, Arendt on, 64; statutory definitions of
39–40 six areas discussed in the unclassified
Society for the Psychological Study of Bybee memorandum, 74–75; and UN
Social Issues, 51 CAT, 33–35, 41n6, 143
The Soldier and the State (Huntington), 15, Torture Convention. See UN Conven-
169–70 tion Against Torture and Other Cruel,
Soldier’s Rules (ten rules of the law of Inhuman, or Degrading Treatment or
war), 199 Punishment (CAT)
Soldz, Stephen, 27–30, 50–54, 59–60 torture memos. See interrogation memo-
“soul” of professions, struggle for, 135–36 randa (“torture memos”) of the OLC
Spaulding, David, 129 Torture Victims Protection Act, 70
Spaulding v. Zimmerman (1962), 129 truth serum interrogations, 64–65, 66n38,
Squillacote, Theresa Marie, 56–64 93, 111n6, 185
Squillacote case, 56–64, 66n29, 66n31 Turner, Lisa, 165–66, 173–74
Stand, Kurt Alan, 56
Standards of Exemplary Conduct, 199, UN Commission on Human Rights, 124
202 UN Convention Against Torture and
Stanford prison experiment, 51 Other Cruel, Inhuman, or Degrad-
Stout, Jeffrey, 1, 3, 150, 206–7 ing Treatment or Punishment (CAT),
Strategic Studies Institute of the Army 33–35, 41n6, 143; and APA definition of
War College, 198 torture, 38; and OLC torture memos,
Strawson, P. F., 75 38, 69–70, 101; principle 2.2 and APA
Sulmasy, Glen, 168–72, 188, 200 resolution acknowledging/affirming,
35–36; US reservations to, 38, 101
targeted killing, 194n14; of al-Awlaki, UN Principles of Medical Ethics (1982),
197; drone attacks, 194n14, 197, 203–4; 116–17, 120–21, 156
Index 227
Uniform Code of Military Justice Walzer, Michael, 93–99; account of rela-

(UCMJ), 166–67, 182, 199, 202; and FM tion of torture and law, 93–94, 102–3;
34-52 interrogation techniques, 182; argument that torture is occasionally
and JAG opposition to enhanced inter- necessary, 93–99, 102–3; and Camus’s
rogation policy, 166–67, 169, 173 Just Assassins, 96–99; and Dershowitz’s
United States Code, 69–71, 167 “ticking bomb” scenario, 93–94, 102–3;
Universities in the Marketplace: The Com- on responsibility of political leaders
mercialization of Higher Education (Bok), who choose to torture, 96–99
152 Warrior Ethos, 202
US Army’s Psychological Applications Washington Monthly, 36
Directorate, 32 waterboarding: classified Bybee memo-
US Court of Appeals for the Fourth randum, 185, 187; medical monitoring
Circuit, 56 of, 105, 108; SERE training techniques,
US Supreme Court: Hamdan v. Rumsfeld, 104, 105; training and experimentation
173, 174–75, 189; rulings on specific in, 104, 105
intent and “severe pain” (statutory Wolf, Frank, 72
definitions of six areas discussed in the World Medical Association, Regulation in
unclassified Bybee memorandum), Time of Armed Conflict (1956), 116
74–75; striking down original military World Psychiatric Association, Declara-
commissions, 173, 174–75, 189; Termi- tion of Madrid (1996), 116
niello v. City of Chicago, 205–6 Wynia, Matthew K., 63–64
Vandeveld, Darrel J., 176, 179n24 Yoo, John: summary letter to Gonzales,
Vanity Fair, 36 69; and the two differing drafts of the
Vermeule, Adrian, 91, 92 OPR report, 78–79
Virtue Ethics and Professional Roles (Oakley Yoo memorandum (“torture memo”),
and Cocking), 151 38, 67–70, 73–77, 84–85, 87–88n1, 147,
virtue ethics/virtue theory: and Aristote- 172, 173; critics of, 100–101, 107; failure
lian conception of virtue, 151; Oakley to support conclusions with solid
and Cocking’s account of professional legal reasoning, 76–77, 89n23; Mora’s
responsibility, 150, 151–55, 160. See also response to, 11–12, 84–87; OPR inves-
professional role responsibilities tigation of, 11, 71–83; and Rumsfeld’s
Vossekuil, Bryan, 49 authorization of EITs at Guantánamo
Bay, 84–85; Waldron’s comparison with
Waldron, Jeremy, 64, 191; arguments Dershowitz’s arguments, 100–101
against legalizing interrogational
torture, 13, 99–101, 110, 191; on legal Zazi, Najibullah, 195–96
archetypes, 101; response to Der- Ziemer, Lothar, 56–57
showitz and the torture memos, 13, Zimbardo, Philip, 51
100–101, 111n17 Zimmerman, John, 129

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Chapter Ten: This We Do Not Do: The Future

The ethical inheritance of American democracy consists, first of all,

A society entrusts professionals organizationally to pass judgment

in critically engaging terrorism with the resources of democracy? In

professionals. I do not dispute that many professionals have begun to

about professional responsibility in an age of terror, I find Davis’s ex-

professionals implicitly embraced a social-trustee model. That is, they

self-interest or market efficiency. As I will argue in chapter 8, the at-

involvement with Behavioral Science Consultation Teams (so-called

be involved with abusive interrogations, it does not follow that psychol-

enormously controversial. Many legal scholars condemned the legal

perhaps most interesting about the best of the responses to Dershowitz

Chapter 6 develops this point further by examining the system of li-

techniques morally. If my claim that many of the techniques that were

17. Alberto Mora to inspector general, memorandum, Department of the Navy,

If You Can’t Oppose Torture,

Professional societies may indeed have narrow agendas in publish-

If a professional society is unable to take a stand against torture, it is

If there is an iconic image of the prison abuse scandal at Abu Ghraib, it

both because the role of several individual psychologists has been

Should psychologists help efforts to break down detainees? Should

The PENS Report

and elsewhere. The charge to the committee was to “examine whether

• report acts of torture that they witness

• make clear the limits of confidentiality

Psychologists must not

• engage in torture or support, facilitate, or train those who do

Dividing the statements of ethical obligations in this way begins to

Responses to the PENS Report

If language like “acrimony” seems strong, the reality is that it may

ways how professionals may demand of their colleagues justifications

Psychologists establish relationships of trust with those with whom they

consultation.” Thus to apply the code with the understanding that it

Table 1.1 Comparison of APA Code of Ethics 1992 vs. 2002

majority of task-force members worked in national security–related

arise from involvement by psychologists. This in turn resulted in sec-

This statement evinces an understandable concern for psychologists

In addition, the Council of Representatives took a number of steps

Competing Histories of the PENS Report

Panetta, Secretary of Defense Robert Gates, the Senate Select Com-

• Although a 2008 APA resolution prohibits psychologists from

• Although in 2007 the Council of Representatives supported a

What we see in these competing histories of APA action in the PENS

the Department of Defense because the military was a source of fund-

supports a social-trustee model. Indeed, one reason that psycholo-

what divides them; namely, a conception of psychology as a profession

Treatment or Punishment. Nevertheless, in 2005, the board of directors was uncer-

What’s Wrong with Supporting

Rightly understood, professionalism has a civic dimension. The

We saw in chapter 1 what a commitment to democratic deliberation

of a code of professional ethics. Although battles were fought, the field

in coercive interrogations if they are following orders or not violating

Banning Psychologists from National Security–Related Work?

The field of national security psychology is new and has emerged

traditional psychometric tests are not designed to provide useful infor-

behavioral science to counterterrorism efforts. And they call for that

techniques, the current setting in which interrogations are conducted

Code of Ethics sets out as well as the principles articulated by Costanzo,

and depression and is taking the anti-depressants Zoloft and Diserel. . . . The